UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A 


PRELIM  IN AKY   TEEATISE 


ON 


IVIDENCE  AT  THE  COMMON  LAW. 

Part  II. 
OTHER  PRELIMIKAEY   TOPICS. 

BY 

JAMES   BRADLEY  THAYER,  LL.D., 

WELD  PaOFESSUK  OF   LAW   AT   HAKVAKD   UNIVERSITY. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1898. 


/ 

T 


Copi/right,  1S98, 
Bv  James  Bradley  Thayer. 

All  rights  reserved. 


T'nivkhhity  Phess: 

iIlN    \\||,.S()N    AM)    Son,    CAMHUllXiK,    U.S.A. 


CONTENTS  TO  PART  II.       '^ 


^. 


K 


CHAPTER  V. 

Law  and  Fact  in  Jury  Trials 183-262 

The  maxim  ad  qnaestionem  facti  non  respondent  judices,  ad  quaestionejn 
juris  non  respondent  juratores.  — Definition  of  "  fact  "  and  "  law."  —  Rea- 
soning, procedure,  and  evidence. — Questions    of    fact   for   the    court. 

—  Construction  of  writings.  —  Declaring  the  common  law.  —  Supervi- 
sion of  the  jury.  —  Rules  of  presumption.  —  Meaning  of  language.  — 
Special  verdicts.  —  Pleading  evidential  facts. — Actions  for  malicious 
prosecution.  —  Reasonable  and  probable  cause.  — "  Color  "  in  pleading. 

—  Demurrers  upon  evidence.  —  Exceptions,  motions  for  a  new  trial, 
special  cases,  and  reservations  at  nisi  prius.  —  "  Mixed  questions"  of  law 
and  fact.  —  Function  of  the  jury  as  to  questions  of  law.  —  Relation  of 
court  and  jury. 

CHAPTER  VI. 

The  Law  of  Evidence  ;  and  Legal  Reasoning  as  Ap- 
plied TO  the  Ascertainment  of  Facts    ....     263-276 

Definition  of  "Evidence"  and  the  "Law  of  Evidence." — Funda- 
mental conceptions.  —  Legal  reasoning  discriminated  from  evidence.  — 
Peculiarities  of  legal  reasoning. 


CHAPTER  Vn. 
Judicial  Notice 277-312 

Classified  under  the  head  of  legal  reasoning.  —  Ancient  and  modern 
illustrations  of  it,  in  dealing  with  matters  of  record,  with  the  construc- 
tion of  writings,  and  in  miscellaneous  cases. — The  jurj^'s  power. — 
What  is  judicially  noticed.  —  Discriminations  in  applying  the  principle. 


CONTENTS. 


CHAPTER   VIII. 

Pagbs 

Presumptions 313-352 

Classified  under  the  liead  of  legal  reasoning.  —  Prima  facie  rules  of 
substantive  law.  —  An  instrument  of  judicial  legislation.  —  Illustrated  by 
judicial  decisions,  and  legislative  acts  and  ordinances. — Effect  of  pre- 
sumptions in  construing  special  verdicts.  —  General  maxims. —  True 
nature  and  operation  of  presumptions. —  Presumptions  of  law  and  of 
fact.  —  Conflicting  presumptions.  —  Mistakes  in  dealing  with  presump- 
tions.—  Illustrative  cases.  —  Great  variety  of  presumptions. 


CHAPTER  IX. 
The  Burden  of  Proof 353-389 

Classified  under  the  heads  of  pleading  and  legal  reasoning.  —  Various 
meanings  of  the  phrase.  —  Duty  of  establishing  the  proposition  in  dis- 
pute.—  Duty  of  going  forward  in  argument  or  evidence.  —  Illustrative 
cases. —  Pleading  and  onus  probaiidi  in  the  Roman  law.  —  Relation  of 
the  form  of  the  pleadings  to  the  burden  of  proof  —  How  to  determine  the 
burden  of  proof.  —  Ambiguities  relating  to  this  subject. —  Shifting  of 
the  burden.  —  Relation  of  this  subject  to  presumptions.  —  The  proper 
terminology.  —  Usage  in  Massachusetts.  —  Importance  of  detaching  this 
subject  from  the  law  of  evidence. 

CHAPTER   X. 

TiiK  "Parol  Evidknck"  Rule 300-483 

Difficulty  of  the  .sul)j('ct. —  Discriminations.  —  Diflirent  senses  of  the 
word  "evidence."  —  Testimonial  and  disjiositive  documents. — State- 
ment and  analysis  of  the  rule.  —  Substantive  law  in  the  guise  of  evi- 
dence.—  Instaiifi'8  and  illustrations.  —  Parol  contracts  in  writing. — 
Statute  of  Frauds. — Interpretation  and  construction.  —  Rules  of  con- 
Btniction.  —  Analysis  of  the  process.  —  Direct  expressions  of  the  writer's 
intention.  —  Illustrative  cases  relating  to  wills. —  Equivocation.  —  The 
l{oman  hiw. — Hacon's  maxiin  as  to  ambiguity. — Cheynoy's  case. — 
Use  c)f  extrinsic  facts.  —  Ohl  strictness. —  Practice  of  courts  of  equity. 
—  Cotnrnercial  law. —  Rebutting  an  equity.  —  Analysis  and  explanation 
of  the  <loclrinc  in  cnses  of  ('(juivocation.  —  Sir  James  Wigram's  book.  — 
Ills   trcHtnicht   of  the  rule    in  ((luivocation,   and   Hawkins's   criticisms. 


CONTENTS.  xi 

—  Wigram's  second  proposition. —  Analysis  and  criticism  of  several 
leading  cases,  (1)  of  the  stricter  sort;  (2)  of  the  liberal  sort.  —  The 
true  rule  as  to  excluding  extrinsic  facts. — History  and  criticism  of 
Bacon's  maxim.  —  Analysis  and  explanation  of  the  case  of  Miller  y. 
Travers.  —  The  only  rule  of  evidence,  and  the  exception  to  it. 


CHAPTER   XL 

Pages 

The    "Best  Evidence"  Rule 484-507 

A  large  and  vague  thing.  —  Greenleaf 's  statement  of  it.  —  Best's 
statement.  —  Rule  as  to  producing  a  writing  when  its  contents  are  to 
be  proved. — History  of  the  phrase  "  Best  Evidence." — Gilbert's  use 
of  it.  — Lord  Hardwicke's.  —  Burke's.  —  Christian's  criticisms.  —  Appli- 
cation of  the  rule  to  things.  —  To  circumstantial  evidence,  as  compared 
with  direct.  —  A  rule  against  substitutionary  evidence.  —  Three  appli- 
cations of  it.  —  Primary  and  secondary  evidence.  —  Origin  and  develop- 
ment of  the  rule  requiring  the  personal  presence  of  a  witness.  —  Of  the 
rule  requiring  the  proof  of  an  attested  document  by  the  attesting  wit- 
nesses.—  Of  the  rule  requiring  the  production  of  a  writing  when  its 
contents  are  to  be  proved.  —  These  not  traceable  to  any  common  source. 
—  The  phrase  "  Best  Evidence  "  indicates  a  shaping  principle  and  not 
an  excluding  rule. 


CHAPTER   Xn. 

The  Present  and  Future  of  the  Law  of  Evidence     508-538 

True  character  and  value  of  the  law  of  evidence.  —  Needs  restate- 
ment.— Summary  statement  of  it.  —  Its  principles  few,  but  its  rules 
many  and  perplexed.  —  Much  of  it  is  really  a  mistaken  expression  of 
doctrines  of  the  substantive  law.  —  Illustrations  of  this.  —  Excluding 
rules.  —  Relevancy.  —  Rules  of  evidence  which  put  forward  non-legal 
standards.  —  Hearsay,  and  the  exceptions  to  it.  —  Other  leading  rules.  — 
Defects  in  this  part  of  the  law. — The  administration  of  it.  —  Need  of 
extruding  foreign  matter  from  the  law  of  evidence,  and  of  simplifying 
it. — Need  of  legislation,  and  of  judicial  action,  to  the  end  of  dealing 
with  evidence  by  rules  of  court.  —  Governing  principles  to  be  applied  in 
doing  this.  —  The  jury.  —  "  Discretion  "  of  the  judges. 


Xll  CONTENTS. 


APPENDIX   A. 

Pages 

Presumptions  of  Law  and  Presumptive  Evidence     539-550 
[From  6  Eiig.  Law  Magazine,  348.] 

APPENDIX   B. 
The  Presumption  of  Innocence  in  Criminal  Cases  551-576 

APPENDIX  C. 

On  the  Principles  of  Legal  Interpretation,  with  Ref- 
erence ESPECIALLY  TO  THE   INTERPRETATION  OF    WiLLS.      By 

F.  Vaughan  Hawkins,  Esq 577-605 

[From  2  Juridical  Society  Papers,  298.] 


INDEX '.     .     .     .     607-000 


TABLE  OF   CASES. 


In  this  Table  each  case  which  has  the  name  of  two  parties  is  entered  twice,  that  is  to 
say,  under  both  names,  —  except  where  tliese  are  identical.  Ejectment  cases  are  en- 
tered a  third  time,  under  the  name  of  the  fictitious  party.  The  words  Ilex,  Regina, 
The  King,  The  Queen,  when  signifying  a  plaintiff,  are  all  Indicated  by  the  letter  R. 


A. 

Page 

Abbot,  Baxter  v 382 

Abbot  of  Strata  Mercella's  Case     24, 

186 

Abbott  V.  Middleton      .     .      457,  403 

Abrath  v.  N.  E.  Ry.  Co.     .     207,  231, 

356,  357,  377,  380 

Adams,  Wyman  v 227 

Agars  V.  Lisle 331 

Agnew  t'.  U.  S 570,  571 

Alabama  Ry.  Co.,  Interst.  Com. 

Comm.  V 228 

Alder,  Hopes  v 227 

Alderson,  Maddison  v 396 

Alexander,  In  re 501 

Allen  «.  U.  S 571 

Allgood  V.  Blake       .     .    203,  450,  462 

Alsop  V.  Bowtrell 351 

V.  Stacv 351 

Altham's  ( Edward)  Case  186, 423, 424, 

479 

Altham  v.  Anglesea 489 

Am.  Bible  Soc.  v.  Pratt      ...     468 

Amos  V.  Hughes 377 

Anderson  v.  Morice  .     .     .       337,  357 

Terry  v 211 

Andrews  v.  Hoxie 310 

Angier  v.  Jackson 173 

Anglesea,  Altham  v 489 

Angus  V.  Dalton 332 

Dalton  v..     .     .    316,  317,  318 

Anness,  Spencer  v 222 

Anonymous      30,  31,  44,  45,  122,  15-3, 

162,  164,  165,  166,  172,  187.  299, 

407,  415,  419,  422,  489 

Ansell,  Meres  v 402 


Page 
Anthes,  Com.  v  .  .  .  .  207, 220 
Archer's  (Agnes)  Case  ....       26 

Ardoin,  State  v 363 

Argent  v.  Darrell 171 

Argvle  ('.  Hunt 300 

Arkle,  Williams  v 439 

Armsby,  Wilde  v 388 

Armstrong  v.  Stokes     ....     247 

Arnold,  Cummings  v 408 

Arthur,  Meyer  v 290 

Ash  V.  Ash 173 

V.  Marlow      ....      224,  232 
Ashford  v.  Thornton      ....       45 

Astgrigg,  Holt  V 288 

Attorney-General,  Baylis  v.  .  .  434 
r.  Drunimond  4.50 
V.  Dublin     290,  308 

Attrill,  Huntington  v 398 

Atwood's  Estate,  In  re       ...     439 

Atwood  V.  Monger 222 

Avery,  Eaton  Co.  t' 306 

B. 

Babington  v.  Venor       .     .       121,  133 
Bailey  v.  Culverwell     ....     248 

Pickard  v 258 

V.  Sweeting 246 

Baker,  Miller  i; 173 

V.  Paine      ....       408,  419 

Baldev  v.  Parker 246 

Baldvvin  r.  Cole 331 

Ball  V.  Rawles      ....       2-30,  231 
Baltimore  &  Ohio  Railroad  Co. 

V.  Griffiths 227 

Bament,  Bill  y 404 

Banbury  Peerage  Case       .       358,  540 


TABLE   OF   CASES. 


187, 


Bank,  Dorr  v 

Bauk  of  Australia  v.  I'almer 
Bannister,  Eiciiolz  v. 
Barber's  Appeal 
Barclay,  Tavlnr  v.    . 
Barker,  Floyd  v. 

Frj'  V.      .     . 

Onn'cluind  v. 
Barkley,  Pickerin';  v. 
Barnesley  v.  Powell 
Barrett,  Howe  v. 
Barry  v.  Butlin    .     . 
V.  Robinson     . 
Bartlett,  Delano  v.    . 
V.  Hoyt 
V.  Smith 
Batchelder,  Black  r. 
Batcliellor,  Makarell  v. 
Bates  V.  Tyniason 
Baxter  i\  Abbot  .     . 
Baylis  v.  Atty.-Gen. 
Baynes  v.  Brewster 
Beadcl  r.  Perrv    .     . 
Jk-ale,  Pa.  R.  R.  Co.  v. 
Beates,  Millar  r. 
Beaiimon'  r.  Tell 
Bedell  r.  Tr;icy   .     . 
Beebe  »•.  State      .     . 
Beociipv,  Goblet  v.    . 
B.di,  Willifonl  V.      . 
Bennett  i'.  Hartford 

Murphy  r. 
Bennison  v.  Jcwison 
Bert  rand,  R.  v.     .     . 
Bowdley,  R.  v.      .     . 
Hickford,  Carlcton  r. 
]iil]  1'.  Bament      .     . 
Billint^ton's  Case 
Binney,  Goddard  r. 
Bitten,  Solomon  i*.    . 
Black  V.  Batchelder 

Youni;  r. 
Bi.'ii'kburn,  (innrd house 

r.  Vipirs 
Blake,  All(;ood  i". 
Fllniitern,  (lollins  c.  . 
FJInlz  V.  Rohrbach  . 
JJIi'wilf  r.  lioornin  . 
Blis.M,  McKinnon  r.  . 
F^li!^^t•,  Onwforij  r,  . 
ISiirirdrnnn  i'.  Wnoduiai 
Boorum,  Blewilt  v.   . 


28i), 


491, 
259, 


203 


362, 
374, 
224 


433. 


171, 


437, 
450, 


31)1, 


3!)1, 


38U 
397 
200 
564 
3U8 
104 

33 
492 
261 
408 
339 
388 

33 
388 
259 
259 
411 
211 
400 
382 
434 
222 
324 
208 
324 
437 
391 
304 
482 
259 
174 
333 
187 

ns 

173 
399 
404 
190 
247 
209 
411 
209 
477 
335 
402 
4O0 
304 
408 
170 
277 
213 
403 


Boosey,  Jefferys  v.  . 
Booth,  Martindale  v. 
Boston,  Cochrane  v. 

Parks  V. 
Schwarz  v. 
Boston    &    Albany   R. 

Doyle  I' 

Bosun,  Fitzharris  v. 
Bowden,  R.  v.      .     . 
Bowers,  Fearon  v. 
Bowes  V.  Shand   .     . 
Bowker,  Hutchinson  >>. 
Wilmshurst  v 
Bowtrell,  AIsop  r. 
Bowyer,  Challoner  v 
Bradford  v.  Cunard  Co, 
Brady  r.  Paj^e 
Braiisford,  Geortjia  v 
Braines,  Watts  v. 
Brani  v.  U.  S. 
Brett  V.  Rii;don    . 
Brewster,  Baynes  v 
Brick  V.  Brick 
Briffit  V.  State      . 
Briurgs  V.  Partridife 
Brighani  v.  Palmer 
Bri,i;ht  !'.  Eynon  . 
Brjjad,  Harvey  v. 
Brolhcrton  v.  People 
Brough  V.  Dennison 

V.  Perkins 

White  V.  . 
Brown  v.  B3'rne    . 

V.  Foster  . 

V.  McGrau 

I'.  Piper     . 

Tindal  v.  . 
Browne,  Cotton  »'. 
Brune  v.  Thompson 
Brunne's  Case 
Bryant  v.  Foot 
Biidd,  IIum]ihr('vs  r 
Bulkelcv  r.  Smith 
Bull,  (::alder«.      . 
Mclvyring  v. 
Biirdett,  li.v.  .     . 
Burdick,  Sew(dl  v. 
Biirham  v.  Heyman 
ISurns  V.  F.rben     . 
Biiriiworth'a  Case 
Burr  r.  Sim 
Biirrell,  (iroenvcit  t' 


Page 
.  .  319 
,     .     248 

247,  249 
108 
248 
Co., 

227 
.     236 

175,  177 
201 
290 
205 
247 
351 
415 
298 
299 
254 
104 

270,  552 
415 
222 
408 
304 
409 
503 


lib, 


154,  171 
292 

S03,  383 
.  288 
.  292 
.    289 

409,  436 

.     263 

.     200 

294 

226,  249 
222 

300,  311 
.     418 

213,  318 
.     310 

225.  230 
.  214 
.     374 

359,  540 
235,  237,  260 
.     154 

222,  232 


324 
230 


TABLE   OF   CASES. 


xvn 


Page 

Durridjre,  R.  v 96 

Burton  t'.  Kv.  Co 230 

Bushell's  Case      .     Ill,  160,  167,  lOS, 
185,  251,  430,  500 

Bushton.  People  v ■iCy.i 

Busk,  Pickerini;  r 247 

Buswell  V.  Fuller  .  .  .  300,  387 
Butler,  Central  Bridge  Co.  v.  .  355 
Butlin,  Barry  v.  .  .  .  302,  388 
B3'rne,  Brown  v.       ...       40;),  436 

C. 

Calder  w.  Bull 214 

Caldwell  V.  N.  J.  Co 350 

Campbell  v.  Dearborn  .     .     .     .     418 

Pym  V 408 

Canal  Co.,  Manley  v 208 

V.  Ray  . 401 

Candell  v.  London 224 

Canning's  Case 518 

Cannon,  People  v 337 

Capital  &  Counties  Bank  v.  Henty  210, 

220,  2:)0 

Captain  Green's  Case    ....     558 

Carleton  v.  Bickfurd      ....     399 

Carnion  v.  State 304 

Carroll  v.  Interst.  Rapid  Trans. 

Co 223 

Carstairs,  Rick  man  v 581 

Cass,  State  v 408 

Cassidy  v.  Holbrook  ....  290 
Castledon  v.  Turner  .  .  423,  455 
Caujolle  V.  Ferrie      .     .     .       351,  o52 

Cellier's  Case 108 

Central  Bridge  Co.  v.  Butler  .  355 
Challoner  v.  Bowyer  ....  415 
Chambers  v.  Taylor  ....  221 
Chancellor  of  Oxford's  Case       .     331 

Cliapin  V.  Uobson 409 

Charlesworth,  Post  v 400 

Charter  v.  Charter  435,  445,  450,  403. 
405.  40y,  480 
Chattanooga  R.  R.  Co.  v.  Owen  170 
Chee  Kee,  People  v.  .  .  294,  308 
Clieyney's  (Lord)  Case  .  .  .  415 
Chicago  &  Northwestern  Ry.  Co., 

Eastman  v 306 

Chichester,  Doe  d-  r.  O.xenden       449, 
450,  452,454,  456,  479 

Childress  v.  Emory 33 

Choate,  Com.  v 356,  303 

Christian,  Whittington  v.       .     .     238 


Page 

Christy,  Tancred  v 248 

Clark,  Field  v 257 

Isaack  v.    .      185,  187,  331,  332 

Watson  V 357 

V.  Wise 248 

Cloyne  v.  Young 438 

Cochran  v.  U.  S.       ...       508.  571 
Cochrane  v.  Boston       .     .       217,  249 

V.  Moore 193 

Cocksedge  v.  Fanshaw     122,  237,  238 

Coffin  I'."  U.  S.      .    270,  315,  337,  551, 

566,  570,  571 

Cole,  Baldwin  v 331 

Martin  v 409 

V.  N.  W.  Bank    ....     248 

V.  Rawlinson    42  J,  429,  435,  447 

Collector,  Gardner  v.  .       257,  308 

Collier  v.  Nokes        294 

Collins  V   Blantern 406 

V.  Waltham 247 

Colpoys  V.  Colpoys        ....     425 
Commissioners,  London  &  N.  W. 

Ry.  Co.  V 318 

Commonwealth  v.  Anthes        207.  220 
r.  Choate       ....       350,  363 

V.  Culver 259 

v.  Heath 383 

V.  King .303 

V.  Kuapp 340 

V.  Lahy 300 

V.  Marzynski 303 

V.  JMcManus 256 

V.  Peckham        297 

V.  Piper 259 

V.  Pomeroy 383 

V.  Steimling 179 

V.  Sullivan 216 

V.  Trefethen       .     .     .       383,  444 

Udderzook  v 305 

V.  Webster    ....       550,  500 

V.  Whitney 300 

V.  Wright 216 

V.  York 304 

Company  of  Glaziers'  Case    .     .       31 
Connecticut    River   Co.,   Harri- 

gan  V 303 

Cook  V.  Darling        399 

Corbett,  Douglass  r.      ....     231 
Corey's  (Giles)  Case     ....       77 

Cornelius,  R.  r 177 

Coteler  v.  ILill 418 

Cotesworth,  Key  c 200 


XVlll 


TABLE   OF   CASES. 


Page 

Cotton  V.  Browne 222 

Countess  of  Rutland's  Case    .     .  401 

Cowles,  Wilder  v 364 

Cox,  Keegan  v 249 

Cradock,  Erving  v 256 

Crain  i".  U.  S 552 

Crawcour  v.  Salter 305 

Crawford  v.  Blisse 277 

Lockwood  V 256 

State  V 304 

Crocker,  Stone  v.       .     .     .      203,  224 

Crowiiinshield  r.  Crowninshield  374 

Culver,  Com.  v 259 

Culverwell,  Bailey  v 248 

Cummings  i^.  Arnold    ....  408 

Spooner  v 269 

Cunard  Co.,  Bradford  v.    .     .     .  298 

Gushing,  Nelsoa  v 290 

D. 

Dacey  v.  People 383 

Dalton  1-.  Angus  .     .     .  316,  317,  318 

Angus  V 332 

Darke,  Tutton  v 292 

Darling,  Cook  v 399 

l>arrel.  Argent  v 171 

iJarwin  v.  Upton 541 

l)avey  V.  Lond.  &  G.  W.  Ry. 

Co." "     194,  357 

Davies  v.  Lowndes  .....       46 

Davis  V.  Jennev 168 

R.v.     .' 175 

v.V.S 382,571 

Dean  of  St.  Asaph's  Case  .  .  ISO 
D('arl)orn.  Cain|)l)ell  v.  ...  418 
D"lano  V.  liartlett     .     .     .       374,  388 

Deiiiiison.  Hroiigh  v 288 

Denny  v.  Wiiiianis        ....     193 

Denton  v  Noyes 400 

Di-  I'inna,  Jlopewcll  r.       .     .     .     322 

Desparfl's  (^nsn 554 

I><'lr<pit.  Phillips  I' 2il4 

f).-Wolf.  Noxon  V 388 

DcylH-l'H  Cnsc       ....       300.310 

Di.xon  ?'.  Dixon 321 

Fjk-hh  V .T.I6,   101 

K.  V. 539 

Dol»Hon,  ('hnpin  v 409 

Dorkncy  v.  DockHoy      ....     432 

D'idwcll.  Lnwn.'iice  »' 4211 

Doe  V.  (Jwiliini 58 1 


Doe  d.  Chichester  v.  Oxenden  449, 
450,  452,  454,  456,  479 
George  v.  Jesson  319,  321,  334 
Gord  V.  Needs  425,  440,  480 
Hiscocks  V.  Hiscocks  465, 
480,  597 
Knight,  Nppean  v.  .  .  346 
Westlake  v.  Westlake     .     454 

Doherty  v.  Hill 423 

Donoghue,  Hanley  v 301 

Dorin  v.  Dorin 469 

Dormer,  Roots  r 246 

Smith  d.,  V.  Parkhurst       96, 
153,  167,  171,  189, 

Dorr  V.  Bank       386 

Douglass  V.  Corbett  ....  231 
Dounston,  Southold »'.       .     .     .     2^9. 

Dowd  V.  Watson 348 

Downian's  Case  .  109,  115,  186,  188 
Doyle  V.  B.  &  A.  R.  R.  Co.        .     227 

Drake  v.  State 253 

Drunimond,  Atty.-Gen.  i'.  .  .  450 
Dublin,  Atty.-Gen.  r.  .  .  .290,308 
Dublin  Ky.  Co.  v.  Slattery  227,  241, 
335,  360,  375 
Duchess  of  Kingston's  Case  .     .     398 

Diike  V.  Ventris        174 

Duncan   r.  Duncan        ....     203 

K.  >• 178 

Duncombe  )'.  Wingtield  .  .  332,  334 
Dujiays  r.  Shepherd  ....  307 
Dupoiit,  Munns  c.    .  •  .     .       224,  226 

Durant's  Case 77 

Durfec,  Mayhew  v 249 

Durrell  r.  Kvans 245 

Dyer,  R.  r 292 

Dyson  v.  N.  Y.  Ry.  Co.    ■     .     .     305 

E. 

Earl  of  Shrewsbury's  Case     .     .  334 

I'"ason  V.  Newman 331 

East  &  West   Indian  Dock    Co., 

Glynn    r 201 

Eastman    r.  Chic.   &   N.  W.    Rv. 

Co 306 

Eaton  v.  Soutiil)V 250 

i:,i1nn  Co.  V.  Avery  ....  300 
I'^cclcsiaxlical   Commissioners   v. 

Kitui 325 

Eicholz  V.  Bannister  ....  266 
Ekinsr.  Macklish     .     .     .       261.436 

IClkiti  V.  Janson         362 


TABLE  OF  CASES. 


XIX 


Page 
Ellis  V.  Park 310 

Emmett  v.  Penuoj'er     ....     409 

Emory,  Childress  v 33 

Ennis  v.  Smith 307 

Erben,  Burns  v.         ...      222,  232 

Erving  v.  Cradock 256 

Evans,  Durrell  v 245 

Hoare  v 430 

Ex  parte  Powell      ....  305,  312 

Ryan 561 

Exton,  Holman  v 321 

Eynon,  Bright  v 154, 171 


F. 

Fabian  v.  Wiston 
Falkner,  Martindale  v. 
Fahshaw,  Cocksedge  v. 
Fanshawe"s  Case      .     , 
Farthing,  Vicary  v. 
Faucet,  Page  v.    . 
Faulkner,  Smith  v. 
Fearon  v.  Bowers 
Fell,  Beaumont  v. 
Fenwick  &  Johnson 
Fermor's  Case 
Ferrers's  (Lord)  Case 
Ferrie,  Caujolle  v. 
Field  V.  Clark       . 
■V.  Tenney   . 
Fitchburg  R.  R.  Co 
Fitzharris's  Case 
Fitzharris  v.  Bosun 
Fletcher,  Wallace  v. 
Floyd  V.  Barker  .     . 
Fogossa,  Reniger  v. 
Fonnereau  v.  Poyntz 
Foot,  Bryant  v.    . 
Ford  V.  Hopkins 
Forster,  Hawes  v. 
Forsyth  v.  Hooper 
Foster,  Brown  v.  . 
Fox  V.  Reil      .     . 
Francis,  R.  v. 
Frankland  c.  Saville 
Freccia,  Sturla  v. 
Freeman,  Nixon  v. 
Freer,  Williamson  v 
French  v.  Fj-an    . 
Fry  V.  Barker 
Fuller,  Buswell  r. 
Furzo,  Godfrey  v. 
Fyan,  French  v. 


Tul! 


22,  2-37 
.'  284 


433. 
175. 


351 


213, 
301, 


138, 

205, 


257, 


360, 
257, 


334 
335 
238 
423 
108 
202 
206 
261 
437 
176 
407 
16 1 
352 
257 
259 
167 
161 
236 
317 
164 
102 
408 
318 
489 
260 
247 
263 
503 
496 
1.50 
522 
292 
306 
400 
33 
387 
261 
400 


Garbutt,  People  v. 

Gardner  v.  Collector      .     .      257 

V.  Gardner 
Gardner  Peerage  Case 
Gaze,  Love  v.       .     . 
Gellibrand's  Case     ...       40' 
German,  Knight  v.  , 
George,  Doe  d.,  v.  Jesson  .      319, 

Georgia  v.  Brailsford     .... 
German  Oregon  Bank,  Hess  v.   . 

Gernon,  Wike  v 

Gibbons  v.  Ogden 

Gibson  v.  Holland 

V.  Hunter     122,  235,  236, 

V.  Minet 

Gilbert  v.  McGinnis       .... 
V.  Ry.  Co 

Giles  Corey's  Case 

Gjertsnn,  Olsen  v 

Glaziers'  (Company  of)  Case 

Glendarroch,  The 

Glynn  v.  East  &  W.  L  Dock  Co. 

Goblet  V.  Beechey 

Goddard's  Case 

Goddard  v.  Binney 

Salmon     Falls     Mfg. 
Co.  V.   .     .     .       404 

Godfrey  v.  Furzo 

Goode  V.  Riley 

Goodinge  i;.  Goodings  .    429,  434, 

Gord,  Doe  d.,  v.  Needs     425,  440, 

Gorton  v.  Hadsell     .     .     .       224 

Gosnell,  No.  Carolina  v.    .     .     . 

Gough.  Kibble  v 

Gould  V.  Grant 

Powys  V 

Graham  v.  Sadlier 

Grand   Trunk  Ry.  Co.  v.  Rich- 
ardson       

Granite     State    Insurance    Co., 
Jones  V 

Grant  v.  Gould 

V.  Grant     .     .     .   456,  461, 
Pendleton  v 

Graves  v.  Short    ....       Ill, 

Gregory,  McGregor  v 

Green's  (Captain)  Case      .     .     . 

Green,  Sj-mes  v 


383 
,  308 
350 
540 
439 
,410 
221 
321, 
334 
254 
230, 
231 
123 
305 
404 
237, 
238 
411 
409 
305 

77 
196 

31 
374 
261 
482 
128 
247 

4.36 
261 
408 
441 
480 
258 
571 
246 
49 
174 
206 

209 

382 
491 
469 
432 
174 
287 
558 
382 


XX 


TABLE   OF  CASES. 


Page 

Grev  V.  Pearson        528 

Griffiths,  Bait.  &  Oh.  R.  R.  Co.  v.  227 
Groenvelt  i'.  Burrell  ....  230 
Guardhouse  r.  Blackburn         437,  477 

Guin,  Olive  v 1U8,  150 

Gunston,  Wood  v.     .     .    170,  171,  172 

Gunton,  Skinner  v 221 

Gwillim,  Doe  v 581 

Gwynn,  Jones  v 222 

Gye,  Lumley  v 301 


H. 

Hadsell,  Gorton  v.  . 
Hall,  Coteler  r.  .  . 
Un.  Pac.  R.  R. 
Halleck,  Patrick  v.  . 
Ham,  Haskins  r. 
Hamilton  r.  Ins.  Co. 
Hampden,  Rolfe  v.  . 
Hampshire  v.  Pierce 


Co.  V. 


Hanks,  Hill  v.      .     . 
Hanley  v.  Donoghue 
Hannis,  R.  v.   .     . 
Harbfirn,  Pole  v. 
Harborne,  R.  i".    .     . 
Hardy's  Case  .     .     . 
Hardy  v.  Merrill 
Harford,  Neilson  v. 
Hargrave,  Head  v.    . 

Townsend  v. 
Harley's  Case      .     . 
Harmony,  Mitchell  v. 
Harrigan  v.  Conn.  Riv. 
Harris  v.  Rickett 
Tisdale  v. 
Harrison,  Shepherd  v. 
Hartf.  Pa   R.  R.  Co. 
V.  Tulk  .     .     . 
Hartford,  Bennett  i'. 
Harliing  i'.  The  People 
Harvey  v.  liroad 

.k-iikins  V.  . 
Hnskins  r.  Ham  .     . 
Hasliind,  I!owc  r. 
Hawes  I).  I'orstcr 
Hawkint.  People  r. 
HaycH,  M<'<'()rtnii-k  r. 
Hazy  r,  Wniike  .     . 
Head  v.  Hargrave    . 


224 


.   107 
432,  434, 


Co 


i09 


19G, 


258 
418 
2'JO 
238 
250 
203 
154 
440, 
443 
187 
301 
177 
40G 
345 
510 
525 
200 
297 
396 
76 
188 
303 
403 
404 
247 
209 
408 
174 
214 
292 
213 
250 
321 

2(;o 

250 
,  400 

210 
,  297 


Page 

Heath,  Com.  v 383 

Heidorn,  Morton  v 341 

Henty,  Cap.  &  Co.  Bank  v.    210,  220, 

290 
Herbert  (Lady)  f.  Shaw  .  .  .  1G9 
Hess  V.  Gerni.  Oreg.  Bank      230,  231 

Hewet  V.  Painter 287 

Heydon  v.  Ibgrave 107 

Heyman,  Durham  v 154 

Hibner,  Kurtz  v 435,  467 

Higgins,  Langton  v 391 

Hill,  Dohertv  v 423 

r.  Hanks 187 

V.  Vaux 333 

Hillary  v.  Waller 213 

Hillmon,  Mut.  Life  Ins.  Co.  v.   .     444 

Hilton  V.  Shepard 226 

Hingeston  v.  Kelly 365 

Hiscocks,  Doe  d.  Hiscocks  v.     .    405, 
480,  597 

Hoare  v.  Evans 4.30 

V.  Silverlock       .     .       290,  297 

Plodge,  State  v 328 

Hodgson  V.  Hodgson     ....     433 
Marine  lus.  Co.  v.  .     .     209 

Hoffman  v.  R.  R.  Co 168 

Ilolbrook,  Cassidy  v 290 

Holland,  Gibson  v 404 

Ilolman  v.  Exton 321 

Holt  V.  Astgrigg 288 

R.v 307 

Honour,  Wheeler  v 96 

Hooke's  Case 26,  39 

Hooper,  Forsyth  v 247 

Hopes  I'.  Alder 227 

Ho])('wc'll  r.  De  Pinna  ....     322 

Hopkins.  Ford  v 301,  489 

Horst,  Taylor  r 214 

Howe  V.  Barrett 339 

Howell,  State  v 363 

Hoxie,  Andrews  v 310 

Hoyle,  Jn  re 404 

Hoyt,  Bartlett  v 259 

Hubert's  (Jase 407 

Hudson,  Smith  v 247 

Talbot  1- 303 

Iluiigins.  \l.  V 334 

Hughes,  Amos  r 377 

num|ihrc\s  v.  Budd      ....     310 
Humphries  r.  Parker    .     .       224,  226 

Hunt,  Argvlei; 300 

Mills  « 246 


TABLE   OF   CASES. 


XXI 


Page 
Hunter,  Gibson  v.     122,  235,  236,  237, 

238 
V.  N.  Y.  Ry.  Co.  .     .  295,  2% 


Huntington  v.  Attrill    . 

Rowe  V. 
Huntingtower  (Lord),  Lowe  v 
Hurd,  Shuman  v.      .     .     . 
Hutchinson  v.  Bowker 


398 
332 
471 
350 
205 


Ibgrave,  Heydon  v 107 

Imperial   Ottoman  Bank,  Mira- 

bita  V 247 

Indseth,  Pierce  v 299 

Ingersall,  R.  u 154 

In  re  Alexander 561 

Atwood's  Estate  ....  439 

Hoyle 404 

Stephenson 479 

Insurance  Co.,  Hamilton  v.    .     .  203 
McLanahan  i>.   189,  250 
Schmidt  v.         296,  2:)7 
School  District  v.  308 
Interstate    Commerce    Commis- 
sion V.  Ala.  Ry.  Co.       ...  228 
Interstate  Rapid  Transit  Co.,  Car- 
roll« 

Intoxicating  Liquors,  State  v.    . 


Irwin  V.  Williar 
Isaack  v.  Clark 


185,  187,  331, 


223 

277. 
305 
250 
332 


J. 

Jackson,  Angier  v 173 

Martyn  v 172 

Metropolitan  Ry.  Co.  v.  -361 

Primate  v 176 

R.  f 175 

Jackson  Co.,  Wells  v 299 

Jacob's  Case 305 

.James  v.  Phelps 232 

Jameson,  H.  v 219 

Janson,Elkin  V .362 

Jefferys  v.  Booscy 319 

Jenkins  v.  Harvey 213 

Jenner  v.  Smith        247 

Jenness  v.  Wendell       ....  246 

Jenney,  Davis  r 168 

Jennison  v.  Stafford      ....  388 

Jesson,  Doe  d.  George  r.  319.  .321,  334 

Jewison,  Bennison  v 187 


Johnson,  Kirman  v 426 

V.  Robertson  ....     311 

V.  Whitbeck  ....     248 

Johnson  &  Fenwick,  R.  v.      .  175,  176 

Johnson  &  Trumpei's  Case    .     .     3-33 

Johnstone  v.  Sutton      .     .       222, 224 

Sutton  V 226 

Jones  r.  Gran.  St.  Ins.  Co.    .     .     382 

V.  Gwynn 222 

V.  Morley 401 

V.  Newman 471 

R.  y 175,  253 

Robinson  v 306 

State  V 213 

V.  Stevens 387 

K. 

Kansas,  Mugler  v 360 

Kearney  v.  King 309 

Keegaii  v.  Cox 249 

Kelly,  Hingeston  v 365 

Kempton  Park  Co.,  Powell  v.  19.4,  315 

Kennoway,  Noble  v 301 

Keown  v.  St.  Louis  Ry.  Co.  .     .  223 

Key  V.  Cotesworth 206 

Kibble  v.  Gough       .....  246 

Kidder  i'.  Stevens 333 

King,  Com.  v 303 

Kearney  v 309 

V.  Williams .33 

Kingston's  (Duchess  of)  Case     .  398 

Kino,  Eccl.  Com'rs  v.  .     .     .     .  325 

Kirman  r.  .lohnson       ....  426 

Klare  v.  State .304 

Knapp,  Com.  v 340 

Knicht  «.  German 221 

Knight,  Doe  d.,  Nepenn  v.     .     .  346 

Kruger  v.  Wilcox 261 

Kurtz  V.  Hibner       .     .     .      4-35,  467 

L. 

Ladue,  Nevin  v 305 

Lahy,  Com.  v 360 

Lane  v.  Moore 193 

Langham  v.  Sanford  ....  438 
Langton  v.  Higgins  ....  391 
Lansdowne,   Pearce  v.  194.  216,  240, 

250 
Lark,  Newis  v.     .      108,  109,  121,  236 

Latham,  R.  v 177 

Laud's  Case 160 


XXll 


TABLE   OF   CASES. 


Page 
Lawrence  r.  Dodwell    ....     429 

Sargent  v 301 

Leach's  Case 164 

Leake,  E.  r -248,  288 

Leavitt,  Woodward  r Ill 

Lee,  State  v 179 

V.  Wilcock 321 

Lerned  v.  Wanneuiaclier   .     .     .     395 

Lewin,  R.  t' 177 

Lickbarrow  v.  Mason    .     .       200,  338 

Lilburne's  Case 257 

Lilienthars  Tobacco 500 

Lillibridge,  Maier  v 259 

Lisle,  Agars  v 331 

Lister  r.  Perrj'inan 228 

Litchfield,  ufricli  v.      .    431,  434,  437 

Little  V.  Rogers 33,  330 

Littleton's  Case 18J 

Llewellin  r.  Mack  worth    .     .     .     491 
Lockwood  V.  Crawford       .     .     .     256 

London,  Candell  r 224 

r.  Wood  .  .  .11,31,  32 
London  Brewery  Co.  v.  Tennant  325 
London  Ry.  Co.,  Wakelin  v.  .  .  362 
London    &    Great    Western   Ry. 

Co.,  Davey  v 194,  357 

London  &  Nortli  Wester 

Co.  V.  Coni'rs  . 
London  &  North    Western    Ry 

Co.,  riiipps  r. 
Lord  Morley's  (,'ase 
Lord  St.  Leonards,  Siigil 
Lord  Sandwich's  Case 
Lord  Windsor  v.  .St.  .Toli 
Love's  Case     .     .     . 
Ix)ve  V.  Gaze  ... 
I^we  r.  Lord  Iluntingt 

t'.  Paramour  . 
Lowndes,  T)avics  r. . 
I.,ucas  V.  Dixon 

V.  Williams 
r.iimley  t'.  Gyo     .     . 
Lyic  V.  Riciinrds  .     . 
I, VII   r.  M'vn   . 
Lynn,  Mar.ihall  v.    . 


n  r^v, 


318 


.  180 
.  522 
.  96 
44,  45 
.  160 
.  439 
.  471 
44,  106 
.  46 
396,  404 
.  496 
.  .101 
.  203 
.  334 
.  436 


M. 


Mnrforuon  f.  Thoyto«  . 
Miickrlli-y'H  Case  .  . 
Mnrkli-h"  F,kin^  r.  .  . 
Mockwrjrth,  Llewellin  r. 


.  .  206 
.  .  286 
261.  436 
.     .     491 


Maddison  v.  Alderson  .     .     . 
Madison  County  Court,  State  r 
Maguire's  Case    .     . 
Maiion,  Phipps  v. 
Maier  r.  Lillibridge 
Maine  Central  R.  R.  Co 
Makarell  v.  Batchellor 
Manley  v.  Canal  Co. 
Marine  Insurance  Co. 
Mariot  v.  jNIascal . 
JIarlow,  Ash  r.    .     . 
Marriot  v.  Pascall     . 
IVIarshall  v.  Lynn 
Martin  v.  Cole      .     . 
Martindale  v.  Booth 

V.  Falkner 
Martineau,  Topeka  v. 
Martyn  v.  Jackson    . 
IMaryland,  McCulloch  » 
Marzynski,  Com.  v. 
Mascal,  Mariot  i\ 
Mason,  Lickbarrow 
Master  r.  Miller  . 
Masters  v.  Masters 
May,  Whitebread  v. 
Mayhew  v.  Durfee 
jNIcCausland,  Patterson 
McCormick  r.  Have 
McCulloch  V.  Maryland 
McGinnis,  (iilbert  v. 
IMcGrau,  Brown  r.   . 
McGregor  r.  Gregory 
McKinley's  (^ase 
McKinuon,  Bliss  v.  . 
McKvring  r.  Bull     . 
IMcLnnahan  v.  Ins.  Co 
]\[cManus,  Com.  v.  . 
Mead  <S:  I'cnu's  Case 
I\[('lviu,   Wilson  r.    . 
Merchant  Marine  Lisu 

Stewart  r.    .     .     . 
Meres  r.  .Ansell    . 
Merrill,  Hardy  r.     . 
Metropolitan  Hy.  Co.  ? 


Mover  r.  Arthur 
Middleton.  .\bbott  r. 
IMillar  r.  Beatcs  . 

r.  Tnvhir  . 
Miller  r.  Baker    .     . 

Master  J'.  .     . 

r.  Travers 


Page 

396 

562 

160 

365 

259 

State  V.  S05 

.     .     211 

.     .     208 

odgson  269 

284,  423 

224,  232 

284,  423 

436 


.  409 
.  248 
.  335 
.  167 
.  172 
.  214 
.     303 

284,  423 

260,  338 
375 
.  433 
.  452 
.  249 
.  305 

257,  400 
.  ,214 
.  409 
.  206 
.  287 

556,  557 
.  170 
.  374 

189,  2.50 
.  256 
.  167 
.  £60 


It 


eCo., 

261 
402 
525 
361 
209 
.  290 
4.57,  463 
.  324 
.  318 
.  173 
.  375 
474,  478,  480 


TABLE  OF   CASES. 


xxiu 


Page 

Mills  P.  Hunt 24G 

State  V 561 

Minet,  Gibson  v 411 

Mirabita  v.  Imp.  Ottom.  Bank  .     2-17 

M in-ill  ('.  Nic'hols 423 

Missouri    Pacific    Railwaj'   Co., 

Wolfe  V 305 

Mitchell  V.  Hannony    ....     188 

Monger,  Atwood  v 222 

Montello,  The 303,  308 

Moore,  Cochrane  v 193 

Lane  v 193 

Morgan  v.  Morse 388 

Page  V 246 

IMorice,  Anderson  v.  .  .  337,  357 
Morley's  (Lord)  Case    ....     180 

Morley,  Jones  v 401 

Morral  v.  Sutton 588 

Morris,  State  v 294,  308 

Morse,  Morgan  v 388 

Morton  v.  Heidorn 341 

V.  Tibbett 246 

Moses,  State  v 188 

Mostyn  v.  Mostyn 478 

Mtigler  V.  Kansas 360 

Mullen,  Starratt  r 371 

Munns  i'.  Dupont  .  .  .  224,  226 
Munshower  v.  State  ....  294 
Murphy  v.  Bennett  ....  333 
Mutual    Life   Insurance   Co.   v. 

Hillmon 444 


425, 


N. 

Napper  &  Priddle's  Case  . 
Nauniberg  v.  Young  .  . 
Neaderhouser  v.  State  .  . 
Needham  v.  Thayer  .  . 
Needs,  Doe  d.  Gord  v. 
Neff,  Pennoyer  v.  . 
Neilson  v.  Harford  .... 
Nelson  v.  Cushing  .... 
Nepean  v.  Doe  d.  Kniglit 

Nevin  v.  Ladiie 

Newburgh  v.  Newburgh  468. 
Newis  V.  Lark  .  108,  109, 
New  Jersey  Co.,  Caldwell  v. 

Newman,  Eason  v 

Jones  v 

New  York  Ry.  Co.,  Dyson  v. 
Hunter  v. 


186 
409 
303 
400 
480 
399 
206 
290 
346 
M05 
478 
236 
356 
331 
471 
305 
295, 
296 


Nichols,  Mirrill  v 423 

Nicols,  R.  V 261 

Nixon  V.  Freeman 292 

Noble  V.  Kennoway      ....     301 

Nokes,  CoUier  v 294 

North  Carolina  v.  Gosnell      .     .     571 

North  Eastern  Ky.  Co.,  Abrath  v.  207, 

231,  356,  357,  377,  380 

North  Western  Bank,  Cole  r.     .     248 

Noxon  V.  De  Wolf 388 

Noyes,  Denton  v 400 


0. 


Oates's  Case    .     .     . 

Ogden,  Gibbons  i\  . 

Ogg  V.  Shuter      .     . 

0?d  Colony  R.  R.  Co. 

Olive  V.  Guin       .     . 

Olsen  V.  Gjertsen 

Omychund  v.  Barker 

Oneby's  Case       .     . 

Osborne  (Lady)  v.  Vill 

Osgood.  Page  i'.  . 

Owen.  Chatlanooga  R.  R.  Co.  v. 

Oxenden,  Doe  d.  Chichester  r.  . 

450,  452,  454,  456 
Oxford's  (Chancellor  of)  Case    . 


Wilder 
108 


161 

305 
338 
249 

,  150 
196 

,  492 
334 
438 
386 
170 

449, 
479 
331 


P. 

Page,  Brady  ?' 299 

?'.  Faucet 292 

'.'.  ]\Iorgan 246 

r.  Osgood 386 

Price  r 302,  310 

Pain  V.  Rochester 221 

Paine's  Case 329,  333 

Paine,  Baker  r 408,419 

Painter,  Hewet  v 287 

P.Tlmer's  Case 555 

Palmer,  Bank  of  Australia  v.     .     397 

Briffham  v 503 

Panton  v.  Williams  .     .  222,  224,  228, 

231 

Paramour,  Lowe  r 44,  106 

Park,  Ellis  v 310 

Parker.  Humphries  v.    .     ,      224,  226 

r.  W.tIHs 247 

Parkey,  Baldev  v 246 

Parkiiurst,  Smith  d.  Dormer!'.    .     96, 
153,  167,  171,  189 


XXIV 


TABLE  OF  CASES. 


Parks  V.  Boston 108 

V.  Ross 296 

Partridge,  Briggs  v 409 

V.  Strange    ....     283 
Pascall,  Marriot  v.  .     .     .       284,  423 

Patch  I'.  White 466,  473 

Patrick  v.  Halleck 238 

Patterson  v.  McCausland  .     .     .     305 

Pawashick,  The 307 

Pearce  v.  Lansdowne       194,  216,  240, 

250 

Pearson,  Grej'  v 582 

Peckham,  Com.  v.    .     . 
Peltier's  Case       .     .     . 
Pendleton  v.  Grant  .     . 
Penn  &  Mead's  Case     . 
Pennoyer,  Enimett  v.    . 
V.  Neff     .     . 
Penn.  R.  R.  Co.  v.  Beale 
Hart  r. 
Robertsor 
People,  Brotherton  v.    . 

V.  Bushton  .     . 

V.  Cannon    .     . 

V.  Chee  Kee 

Dacey  v.      .     . 

V.  Garbutt    .     . 

Hartung  r. 

V.  Hawkins 

V.  Ririrdan   .     . 

r.  Tinker      .     . 

Wvnphameri'. 
Perkins,  Brough  ??.  .     . 

South  Ottawa  v. 
Perry,  Beadcl  v.  .     .     . 
IVrrynian,  Lister  v. 
Pelts,  Webb  V.     .      .     . 
Phelps.  .lames  v. 
I'hciH''s  Trusts    . 
Philadelphia  &  Reading 

fo..  n.  H.v.  .  .  . 
Phillips  t».  Detroit  .  . 
Phippst).  Lond.&N.W.  Ry. 

V.  Malion 
Pirkard  v.  nnilcy 
Pickering  r.  Ftarkli'V 
r.  Busk    ". 
Pierce,  Hampshire  v. 


r.  Inilspth 
Pier*  1'.  I'iers  .  . 
Pike,  State  v. 


12, 


Co 


297 
300 
432 
167 
409 
399 
208 
269 
311 

363,  383 
363 
337 

294,308 
383 
383 
214 
250 
363 
r)62 
.304 
202 
.  258 
324 
228 

n 

232 
.346 


189 
294 
227 
365 
258 
».  261 
217 
434,  440, 
443 
200 
346 
213 


Piper,  Brown  v 294 

Com.  V 259 

Pirie,  Towgood  v 290 

Place,  Taylor  v 247 

Plunimer's  Case  ....      249,  334 

Pole  V.  Harborn 406 

Pomero}',  Com.  v 383 

Poole,  K.v 187 

Post  V.  (Jharlesworth    ....     400 

Powell,  Barnesley  v 408 

Ex  parte      .     .     .     .305,312 

r.  Kempton  Park  Co.  194,  315 

Powers  V.  Russell     .     .   355,  379,  387 

Powys  V.  Gould 174 

Poyntz,  Fonnereau  v 468 

Pratt,  Am.  Bible  Soc.  v.    .     .     .     468 

V.  Sladden 438 

Prescott,  Snee  v 338 

Price  V.  Page 302,  310 

Priddle  &  Napper's  Case  ...  186 
Primate  v.  Jackson  ....  176 
Putnam,  Vicksburg  R.  R.  Co.  v.  189 
Pym  V.  Campbell 408 


Q. 

Queen's  Case,  The   .     . 
Quelch's  Case       .     . 

E. 

Railroad  Co.,  Hoffman  v. 
Stackus  V. 
Railway  Co.,  Burton  v 
Gilbert  v 
Ray,  Canal  Co.  r. 
Raymond,  State  v 
Ra'wles,  Ball  i:     . 
Rawlinson,  {^olc  v.    426,  4! 
Read,  R.  v.     .     . 
Reil,  Fox  V.     .     . 
Reniger  v.  Fogossa 
R.  r.  Berfrand    . 

J".  l?('wdlev 

?'.  Bowdcn 

r.  Burridge     . 

V.  Hurdett 

r.  Cornelius    . 

V.  Pavis 

V.  Dixon     .     . 

V.  Dimean  .     . 

r.  Dver 

V.  Fenwick  &  .Johnson 


230, 
29,  435, 


171, 
175, 


359, 


175, 


494 

308 


168 
208 
230 
305 
401 
108 
231 
447 
175 
503 
102 
178 
173 
177 
96 
546 
177 
175 
539 
178 
292 
170 


TABLE   OF   CASES. 


XXV 


Page 

n.  V.  Francis 496 

V.  Hannis 177 

V.  Harborne 345 

17.  Holt 307 

V.  Huggins 334 

V.  Ingersall '     154 

V.  Jackson 175 

V.  Jameson 219 

V.  Jones 175,  253 

V.  Latham 17" 

V.  Leake 248,  288 

V.  Lewin 177 

r.  Nicols 261 

V.  OiiCby 207,  334 

V.  Poole 187 

V.  Read 175 

V.  Scaife 178 

V.  Smith 177 

V.  Stone 359 

V.  Sutton 170,  298 

V.  Thomas 159 

V.  Trantor 520 

V.  Turner 359 

V.  Twvning 344 

V.  Wiilshire 347 

V.  Windham 166 

V.  Withers 307 

Reynolds  v.  liobinson  ....     439 

Richards,  Lyle  v 203 

Richardson,   Grand  Trunk   Ry. 

Co.  V.     .     .     .'  .     269 
r.  Watson      .     .  441,  597 
Richmond,  Taunton  Iron  Co.  v.     387 
Richmond   Railroad   Co.  v.  To- 
bacco Co 269 

Rickett,  Harris  v 403 

Ricketts  V.  Turquand  .     .       452,  476 
Rickman  v.  Carstairs    ....     581 

Riglnn,  Brett  v 415 

Riley,  Goode  v 408 

Riordan,  People  v 363 

Roberts  v.  Savill      .     .     .       221,  222 

Robertson,  Johnson  v.       ...     311 

V.  Pa.  R.  R.  Co.  .     .     208 

Robinson,  Barry  v 33 

V.  Jones        ....     306 

Reynolds  v 439 

Wilcher  v 399 

Rochester,  Pain  v 221 

Rogers,  Little  v 33,  330 

Rohrbach,  Blatz  v 304 

Rolfe  V.  Hampden    .     .     .       107,  154 


Page 

Rollf, 

Thorne  v.   .     . 

. 

.  23 

319 

Rood, 

State  V.      .     . 

, 

258 

Roots 

V.  Dormer  .     . 

246 

Ross, 

Parks  V.     ,     .     . 

''96 

Rowe 

V.  Hasland 
V.  Huntington 

321 

332 

Rowlands  v.  Samuel 

231 

Russell,  Powers  v.    .     . 

355, 

379 

387 

V.  Russell    . 

214 

Strode  v.     .     . 

, 

431 

432 

Rutland's  (Countess  of] 

Case 

401 

Ryan, 

Ex  parte  .     .     . 

, 

561 

Rydei 

V.  Wonibwell 

. 

211 

261 

Sadler,  Sutton  ».      .    .     .      380,  382 

Sadlier,  Graham  v 206 

Saint  Asaph's  (Dean  of)  Case  .  186 
Saint  Bar  r.  Williams  ....  108 
Saint  .lohn,  Windsor  (Lord)  v.  44,  45 
Saint  Louis  Ry,  Co.,  Keown  v.  .     223 

Salisbur3''s  Case 257 

Salmon  Falls  Manufacturing  Co. 

V.  Goddard 404,  436 

.  305 
.  231 
.  305 
.  96 
.  438 
.  301 
.  318 
221,  222 
1.38,  1.50 


Salter,  Crawcour  v. 
Samuel,  Rowlands  v. 
Sanilford,  Dred  Scott  v. 
Sandwich's  (Lord)  Case 
Sanford,  Langham  v. 
Sargent  v.  Lawrence 
Saunders  v.  Saunders 
Savill,  Roberts  v. 
Saville,  Frankland  v. 
Sayer  v.  Sayer      .     . 
Scaife,  R.  v.    .     .     . 
Schmidt  v.  Ins.  Co. 
School  District  v.  Ins.  Co. 
Schwarz  v.  Boston 
Schweitzer,  State  v. 
Scott  V.  Wood 
Scott  (Dred)  v.  Sandford 


471,  481 
.     .     178 

296,  297 
.  .  308 
.  .  248 
.     .     362 

364,  387 
.     .     305 


Seaman's  .A.id  Society,  Tucker  v.  468, 

477 
Sewell  V.  Burdick  .  .  2-35,  237,  260 
Seymour,  Co.  of  Stationers  v.     .     292 


Shaftesbury's  Case  .  . 

Shand,  Bowes  v.  .     .  . 

Shaw,  Herbert  (Lady)  v. 

V.  Stone     .     .  . 

Shepard,  Hilton  v.    .  . 

Shepherd,  Dupays  v.  . 

v.  Harrison  . 


180 
290 
169 
535 
226 
307 
247 


TABLE  OF  CASES. 


Page 
Shoemaker  r.  U.  S 108 

Shore  v.  Wilson 290 

Short,  Graves  t' Ill,  174 

Shrewsbury's  (Earl  of)  Case      .     334 

Shuman  r.  Hurd 350 

V.  Sliuman 350 

Shuter,  Ogg  v 338 

Silverlock,  Hoare  v.      .     .       290,  297 
Sim,  Burr  .........     324 

Siuimons  ».  U.  S 189 

Simon's  Case 175 

Skinner  v.  Gunton 221 

Sladden,  Pratt  v 43S 

Slade's  Case 31,  172 

Slattery,  Dublin  Ivy.  Co.  v.    227,  241, 

335,  oUOi,  375 

Smith,  Bartlett  v.      .     .  187,  224,  259 

Bulkeley  v.    .     .     .       225,  230 

Ennis  v 307 

I'.  Faulkner 206 

V.  Hudson 247 

Jenner  v 247 

R.v 177 

Thorington  v 191 

Smith  d.  Dormer  i".  Parkhurst  90,  153, 

1G7,  171,  189 

Smitherman,  So.  East.  Ry.  Co.  v.  241 

Snee  v.  Prescott 338 

209 


Solomon  v.  Bitten 
South  Eastern  Ry.  Co. 

erman 

South  Ottawa  v.  Perkins 
Southby,  Eaton  v.    . 
Southold  V.  Dounston 
Sparf  ».  U.  S.      .     . 
Spencer  v.  Anness   . 
Spenpler  V.  Williams 
S perry  v.  Wilcox 
Spooner  v.  Cummings 
Stack  us  V.  U.  R.  Co. 
Stacy,  AIsop  r.    .     , 
Stafford.  .Iciiiii><i(n  v. 
Starratt  r.  Miilli'ii     . 
Slate  V.  Ardoiii    .     . 

H<!el)('  V.  .     .     . 

Briflit  V.  .     .     . 

Carmoii  i'.    . 

t».  C.n^H    .     .     . 

V.  fVawford 

Drake  v. .     .     . 

V.  Ilodgn.     .     . 

V.  Howell      .     . 


V.  Sm 


ith- 

241 

257,  258 
250 
289 
2.56 
222 
305 
387 
209 
208 
.351 
388 
371 
303 
.304 
304 
304 
408 
364 
253 
328 
303 


Page 
State  V.  Intoxicating  Liquors  277,  305 


V.  Junes 

Klare  v 

V.  Lee  . 

V.  Madison  County  Court 

V.  Me.  Cen.  R.  K.  Co 

V.  Mills  .     . 

V.  Morris 

V.  Moses .     . 

Munshower  v 

Neaderliouser  v 

V.  Pike     .     . 

V.  Raymond 

V.  Rood   .     . 

V.  Schweizer 

V.  Stevens    . 

V.  Tisdale     . 
Stationers,  Co.  of,  v 
Steimling,  Com.  v. 
Stephens,  Wass  v. 
Stephenson,  In  re 
Sterling,  Whitney  v. 
Stevens,  Jones  v. 
Kidder  v. 
State  V 
Stewart  v.  Merch,  M; 
Stokes,  Armstrong  v, 
Stone  V.  Crocker  . 

R.  r.  .     .     . 

Siiaw  V.  .     . 
Strafford's  Case   . 
Strange,  Partridge  v. 
Strangcworth's  Case 
Strata  Mercella  (Abbot 
Strode  v.  Russell  .     . 
Sturla  r.  Freccia  .     . 
Sugden  v.  Lord  St.  Leonai 
Sullivan,  Com.  v. 
Sutton,  Johnstone  v. 
V.  Jolmstone 
Morral  v.     . 
R.  V.   .     .     . 
V.  Sadler 
Suydani  v.  Williamson 
Sweeting,  Bailey  r. . 
Svmes  V.  Green   .     . 


In 


294, 


213 

304 

179 

562 

305 

501 

308 

188 

294 

303 

213 

108 

258 

362 

214 

250 

292 

179 

232 

479 

248 

387 

333 

214 

201 

.     247 

203,  224 

.     359 

.     535 

.     160 

.     283 

.       77 

Jase  24, 180 

431,  432 

205,  522 

ds      .     522 

.     .     210 

222,  224 

.     .     220 

.     .     588 

170,  298 

380,  382 

.     .     247 

.     .     240 

.     .     382 


Co. 


T. 

Talbot  V.  Hudson 303 

Tancred  ?'.  ('hristy 248 

'I'aunton  Iron  Co.  v.  Riclimond  .  387 


TABLE   OF   CASES. 


xxvu 


Page 
Taylor  v.  Barclay     .     .     .       286,  308 

Chambers  v '221 

V.  Horst 2U 

Millar  v 318 

V.  Place 247 

Teniiant,  London  Brewery  Co.  r.    325 

Tenney,  Field  r 2.59 

Terry  v.  Anderson 211 

Thayer,  Needliam  v.     .     .       399,  400 

Thomas,  R.  r 159 

Turley  v 301 

Thompson,  Briine  v.      .     .       301),  311 

V.  Whitman    ...     399 

Thorington  v.  Smith     ....     191 

Thorne  v.  Rulft' 23,  319 

Thornton,  Ashford  v 45 

Thoytes,  Macferson  v 206 

Throckmerton  v.  Tracy      .  .     395 

Throckmorton's  Case  ' .     .       158,  162 

Tibbett,  Morton  r 246 

Tindal  v.  Brown      .     .     215,  226,  249 

Tinker,  People  v 562 

Tisdale  v.  Harris 404 

State  V 256 

Tobacco  Co.,   Richmond    R.  R. 

Co.  u 269 

Topeka ».  Martineau     ....     167 

Towgood  V.  Pirie  ....     290 

Townseiid  (Amy's)  Case         .     .     186 

V.  Hargrave  ....     396 

Tracy,  Bedell  »'.' 391 

Throckmerton  v  .  .     .     .     395 

Trantor,  R.  v 520 

Travers,  Miller  v.  .  .  474,  478,  480 
Trefethen,  Com.  v.  .  .  .  383,  444 
Trumper  &  Johnson's  Case  .  .  333 
Tucker  v.  Seaman's  Aid  Soc.  4G8,  477 

Tulk,  Hart  v 468 

Tiilly  V.  Fitchburg  R.  R.  Co.      .     167 

Turley  v.  Thomas 301 

Turner,  Castledon  v.     .     .      423,  455 

R.  V 3,59 

Turquand,  Ricketts  v.  .     .      452,  476 

Tutton  v.  Darke 292 

Twyne's  Case      ....       214,  244 

Twyning,  R.  it 344 

Tymason,  Bates  v 400 

Tyndale's  Case 160 

U. 

Udall's  Case 1.58 

Udderzook  v.  Com 305 


Page 

Ulrich  V.  Litchfield  .     .    431,  434,  4.37 

Union    I'acitic   R.  R.  Co.    v.  Hall  290 

U.  S.  V.  411 

United  States,  Agnew  v.    .       570,  571 

Allen  V.       ...     571 

Biam  V.      .       270,  552 

Cochran  v.        568,  571 

Coffin  V.  270,  315,  337, 

551,  566,  570,  571 

Grain  v.     .     .     .     552 

V.  Phil.  &  Read. 

R.  R.  Co.  .  .  189 
Davis  V.  .  382,  571 
Shoemaker  v.  .  168 
Simmons  v.  .  .  189 
Sparf  r.  .  .  .  256 
V.  U.  P.  R.  R.  Co.  411 
Upton,  Darwin  v 541 

V. 

Vane's  Case 160 

Vaux,  Hill  y 333 

Venor,  Babington  v.      .     .       121,  133 

Ventris,  Duke  v 174 

Vicary  v.  F'arthing 108 

Vicksburg  Railroad  Co.  v.  Putnam  189 

Vigors,  Blackburn  v 335 

Villiers,  Osborne  (Lady)  v.    .     .     438 
V.  Villiers 491 

W. 

Wagstaffe's  Case 164 

Wainsford,  Warner  v 2-34 

Wakefield,  Young  Mfg.  Co.  v.  .  246 

Wakeline  r.  Lond.  Ry.  Co.    .     .  362 

Wallace  r.  Fletcher 317 

Waller,  Hilarv  v 213 

Wallis,  Parker  v 247 

Waltham,  Collins  v 247 

Wannemacher,  Lerned  v.  .     .     .  395 

Warlich  v.  White 347 

Warner  t'.  Wainsford  ....  234 

Wass  V.  Stephens 2^2 

Watson  r.  Clark 3,57 

Dowdy  V 348 

Richardson  v.  .     .      441,  597 

Watts  V.  Braines 164 

Webb  V.  Petts 11 

Webster,  Com.  v.     .     .     .       559,  560 

Welbv  r,  Welbv 408 

Wells  V.  Jackson 299 


XXVlll 


TABLE  OF  CASES. 


Wendell,  Jenness  v 246 

Westlake,  Doe  d.  Westlake  v.  .  454 

Weston's  Case 76 

Wharton's  Case  .....  164 

Wheeler  v.  Honour       ....  96 

Whitbeck,  Johnson  v 248 

Whitbread  r.  May 452 

White  r.  Brough" 289 

Patch  V 466,  473 

Warlich  v 347 

Whitebread's  Case  ....    38,  160 

Whitman,  Thompson  v.    .     .     .  399 

Whitney,  Com.  v 306 

r.  Sterling     ....  248 

Whittington  v.  Christian  .     .     .  238 

Wike  r.  Gernon 123 

Wilcher  v.  Robinson     ....  399 

Wilcock.  Lee  y 321 

Wilcox,  Kruger  v 261 

Sperry  v 387 

Wilde  V.  Armsby 388 

Wilder  v.  Cowles 364 

Old  Col.  R.  R.  Co.v.      .  249 

Williams  v.  Arkle 439 

Denny  v 193 

King  V 33 

Lucas  V 496 

I'anton  f.    222,224,228,231 

St.  Bar  17 168 

Spengler  v.     .     .     .     .  305 

Williamson  v.  Freer     ....  306 

Suydam  v 247 

Williar,  Irwin"r 250 

Williford  V.  Bell 259 


Willshire,  R.  v 347 

Wilmshurst  v.  Bowker      .     .     .    247 

Wilson  V.  Melvin 360 

Shore  v 290 

Windham,  R.  v 166 

Windsor  (Lord)  v.  St.  John  .  44,  45 
Wingtield,  Dunconibe  v.   .       332,  334 

Wise,  Clark  v 248 

Wiston,  Fabian  v 334 

Withers,  R.  v 307 

Woitke,  Hazv  v 210 

Wolfe  r.  Mo.'  Pac.  Ry.  Co.  .  .  305 
Wolverton  Mortgaged  Estates  .  464 
Wombweli,  Ryder  r.     .     .      211,261 

Wood's  Case 167 

Wood  V.  Gunston     .     .    170,  171,  172 

London  v 11,  31,  32 

Scott  V 364,  387 


W^oodnian,  Boardman  v. 
Woodward  v.  Leavitt    . 
Wright,  Com.  r.  .     .     . 
Met.  Ry.  Co.  v. 
Wyman  v.  Adams    . 

Wyn,  Lyn  v 

Wyneliamer  v.  People  . 


213 
111 
216 
209 
227 
334 
304 


Young  ?'.  Black 269 

Clovne  V 438 

Mfg.  Co.  r.  Wakefield    .  246 

Naumberg  v 409 

Youngs  V.  Youngs 306 

York's  Case 364 

York,  Com.  t; 364 


YEAR  BOOK  AND  OTHER  EARLY  CASES.    XXIX 


YEAR   BOOK   AND  OTHER   EARLY   CASES. 

Page 

20  &  21  Edward  1 20 106 

"                 "        68 28 

«                 «         110 146 

"                "         264 414 

"                 "         304 28 

«                "         330 28,  146 

21  &  22           "         273 155 

"         428 106 

450 106 

616 233 

30  &  31           "         122 121 

"                 "         132 114 

"  "         116 101,112 

"                "         117 4(3 

"                 "        124 147 

"                 "         189 29 

"                "         228 116 

«                «         256 282 

«                "         492 55 

"                 «         510 75 

"                "         522 161 

"                "         528 113 

"                "         529 161 

"                "         538 157 

"                "         539 82 

"                "         543 185 

545 71 

32  &  33          "         60 67 

"         318 67 

"         516 11 

33&35           "         ....       100,  107 115 

"         118 115 

"                "         122 .306 

"                 "          166 114 

Edward  II 24 23 

"             242 15 

"             277 148 

«  278 28, 103 

"            .373 88 

507 14.  103 

6U 112 

7  Edward  III 4.  7 282 

11  &  12  Edward  III 338 100 

"                «              341 101 


XXX  YEAR  BOOK   AND   OTHER   EARLY   CASES. 

Page 

11  &  12  Edward  III G20 107 

]2&  13           "              4 100 

13  &  U           "              80 107 

14  "              25 108 

14  &  15  "  261 83,  124 

15  "              2iJ0 29 

17                    "              2,  6 44 

"                     "              ....      48,  14 15 

21  "              40 351 

22  "              1,2 93 

40                    "              ....     34,  18 142 

47  •'              .     .     .     .      IG,  2J 418 

"                     "              lOb 420 

48  "              ....     30,  17 123 

50                    "              0,  12 21 

23  Lib.  Assisai-Liin        H 498 

27            "                12 124 

"                 82 157 

"                  12 123 

Bellewe  (Rich.  II.) 237 19 

"              "               ....      251,2 123 

3  Henrv  IV 4,  18 124 

4  ""           1,  2 94 

7  '■             9.  13 347 

"        "            11,  3 114 

"             20,  28 45 

"        "            41,  5 291 

8  "             1,2 75 

"             6.  8 125 

9  "             3,  16 44 

11       "  17,  41 110,  125 

"             50,  27 110 

"       "             70,  4 142 

7  Henrv  V 5,  3 109 

1  Henrv  VI 6,  29 44 

""                7,  31 394 

2  "                 9,  5 394 

9  "                   63.  16 117 

10  "                  20.  67 119 

11  "                  1,  2 117 

"                   -2,  4 119 

"        "                  13 418 

"        "                 21,63 119 

"        "                  35,  27 119 

"        "                  43,  36 126 

"        "                  42.  37 127 

n       "                  23.  67 117 

IH       "                 17,  8 395 

19      "                  10.  25 29 

"       "                  19.  41 233 

"       "  21,  42 118,  232 

"       "                 31,  59 119 


YEAR   BOOK  AND   OTHER   EARLY  CASES.         xxxi 

Page 

19  Henry  VI 44,  93 407 

21  "               15,  30 128 

22  "               12,  13 311 

"                35,  54 119 

28         "               6,  1 128 

32  "               9,  14 96 

33  "               7,  23 29 

"                8 14 

8,  23 129 

34  "                14,  36 407 

"                 30,  7 205 

"         "                36,  7 234 

35  "               30,  35 282 

38  "                13,  27 105 

39  "                9.  14 119 

"         "                 16,  20 120 

"         "                34,  46 394 

4  Edward  IV 11,  18 76 

5  "              6,  6 418 

«              40  b  .     .     .   (Long  Quint)     ....  418 

«              48b  ...       "           "         ....  418 

"              54b  ...       "           •'         ....  418 

"  .58 121,  133 

"              74  b  .     .     .   (Long  Quint)     ....  418 

«              80b  ...       "           "         ....  418 

"              90b  ...       "           "         ....  418 

"              97b  ...       "           "         ....  418 

"  29,  14 138,  154 

9  "             49,  7 119 

12          "              4,  9 101 

14          "             8,  17 76 

21  "              28,  1 129 

'•  "  .37 108,  111,  115 

"           "              38,  1 Ill 

22  "              S9,  24 117 

5  Henry  VII 8 102 

10  "                  15,  13 119 

"        "  29,  27 118,  119 

11  "                 6,  4 418 

12  "                 4.  2 151 

14       " 29,  4 132 

20  "                 3,  8 133 

"  11.21 118,125,129,221,224 

21  "                 40.  .58 21 

9HenrvVIII 14,1 292 

12        •'                6 421 

14        "                  17.  6 395 

27       "                2,  6 125 

"                  27,  12 287 

Keihvey 70,  4  .     .     .     (Hen.  VIT.)     ....  75 

176  ..     .     (lien.  VIII  )     ....  20 

"           202,  b.  1  .     .     .               "               ....  119 


xxxii   TEAR  ROOK  AND  OTHER  EARLY  CASES. 


Bracton's  I 

sote  Book 

ii. 

Case      40  . 
46  . 
51  . 
67  . 

.     .      (1219) 
.      (1219) 

" 

" 

iii. 

"        91  . 
"       107  . 
"     1362  . 
"     1474  . 
"     1963  . 

.      (1220) 

II 
.     '.      (1221) 

(1 

:! 

ii. 

"       154  . 

"       194  . 

.     (1222) 

'' 

'' 

iii. 
ii. 

"     1041  . 
"     1693  . 
"     1707  . 
"     1724  . 
"       243  . 
"       249  . 
"      260  . 

.      (1225) 
.      (1226) 

.     .     (1227) 

u 

11 

iii. 
.     ii. 

"     1187  . 
"       202  . 

(1236-7) 
.      (1227) 

" 

" 

iii. 

"      1919  . 

.     .         " 

'' 

" 

ii. 

"       325  . 
"       356  . 
"       375  . 

.      (1229) 
.     .     (12.30) 

11 
it 

" 

"' 

"       456  . 
"       564  . 
"       592  . 
"       631   . 

"       887  . 

.      (1231) 
.      (1232) 

" 

" 

iii. 

"     1131   .     . 

.      (1234) 

" 

II 
II 

11 

"     1115   . 

"     1166  . 

(1234-5) 
(1235-6) 

t< 

« 

" 

"     1189   . 

.      (1236) 

«' 

11 

" 

"     1220  . 

.      (1237) 

Hrooke's  Abridf^tiKiiit.     Attaint 

68     .     . 

.      (1339) 

" 

"                Fines 

28     .     . 

.      (1373) 

" 

"                General  Issue    16     .     .  0 

Before  1559) 

'■ 

"                Nosine 

G3     .     . 

.      (1373) 

Uninner,  ScliwiirKfrichte,  372     .     . 

.      (1200) 

II 

371     . 

.      (1248) 

It 

"                 373     .     . 

.      (1347) 

Calendars  of  Procoedint^s  in  <  h.iiuc 

V,  i.  xix     . 

(1450  60) 

II 

u                             u 

i.  ccxx 

.      (1492) 

Trorulal  HcTords,  431-436  .     .     . 

.      (134M) 

I)y«'r"H  Itcf 

.,  noli-  of  Tici)y,  C.  .1. 

1111,     .      .     . 

.      (12S1) 

Fitzlierl)ert 

's  At>rid(,'ni<'iit.      Aic 

1      .     .      . 

.      (1422) 

1' 

"                  Altaiiit 

69     .     .     . 

.      (1323) 

II 

.1 

60     .     . 

.      (1409) 

11 

"                 Hiirro 

19     .     .     . 

.      (1410) 

« 

"                 (Niroiip 

287     .     .     . 

.      (1329) 

« 

II                       " 

118     ..     . 

.      (1338) 

<i 

"                       Drill. 

(;s    .     .     . 

.      (14601 

«( 

II 

I'cil. 

56     .     .     . 

.      (1373) 

YEAR  BOOK   AND   OTHER   EARLY   CASES.      xxxili 


Fovsyth.     Trial  by  Jury,  129       ... 
Gloucester  Pleas.     (Maitlaiul),  Case  383 
"  "  "  "     394 

Liber  Albus      

Liber  de  Antiquis  Leffibus 

Molloy,  de  jure  niaritimo 

Northumberland  Assize  Rolls  (Surtees  Society 


Palprave's  Commonwealth  of  England,  ii 


,701 
142 


Placitorum  Abbreviatio, 


13-17 

"  "  26 

"  «  93 

"  "  90 

«  "  104 

"  "  124  et  feq. 

"  "  267 

«  "  201 

"  "  279 

"  "  280 

"  "  284 

"  "  285 

"  "  227 

"  "  287 

"  «  286 

"  "  291 

«  «  293 

"  "  331 

«  "  331 

«  "  3.33 

Placita  Anglo  Normannica  (Bigelow), 
11  Plymouth  Colony  Records,  234 

5  "    "  "  '         "        167 

6  "  "  "  98 
Province  Laws  of  Massachusetts,  151 


1  Rotul 

Curiae 

Regis 

23-26 

2       " 

125 

1       " 

354 
356 
197-201 
200 
204 

2       " 

i( 

10 
27 
102 
114 
173 
354 

" 

189 

1  Selden  Societ 

V  Publications, 

3       " 

'< 

" 

(11 


Case 


1 

190 


(1200) 
(1221) 

(1220) 
(1409) 
(1.348) 
(12.56) 
(1262) 
(1299) 
(1279) 
(14.35) 

1189-99) 
(1200) 
(1208) 
(1214) 
(1226) 
(1247-1312) 
(1270) 
(1280) 
(1286) 
(1287) 

(1290-1) 
(1291) 

(1291-2) 
(1292) 


(129.3-4) 
(1297) 
(1317) 
(1318) 
(1318-19) 
2th  centuries) 
(1673) 
(1675) 
(1682) 
(1693) 
(1194) 
(1198) 


(1198-9) 

tc 

(1199) 


(1200) 
(1201) 


40, 


51 


Page 

105 

38 

13 

18 

20 

94 

72 

144 

46 

82 

26 

36 

40 

97 

38 

520 

144 

329 

94 

87 

418 

145 

38,88 

56 

24 

87 

29 

20,  520 

92 

99 

71 

et  seq. 

16 

104 

104 

16 

42 

29 

94 

104 

46 

28 

36 

93 

46 

15 

86 

201 

66 

65 

61 

320 


xxxiv          LAWS,  ST^^ 

lTutes,  and  0] 

RDINANCES 

5. 

Page 

1  Selden  Society  Publications,  Case    11        .     . 

.     (1202)     ....     520 

"       "            "                  " 

"01 

28 

«       11            11                 .1 

"87 

13 

3       u 

"    210        .     . 
"    221         .     . 
"    224        .     . 

143 

90 

143 

1       " 

"     241         .     . 
Several  Cases    . 

(1202-21) 

88 
68 

3       .. 

Case          150     .     . 
"             156     .     . 

.     (1203)     . 

143 
320 

1       " 

lie    . 

.      (1214) 

38 

11      II            11                 11 

"             192     . 
"     153,  157     .     . 

.      (1220) 
(1220-2) 

43 
69 

3     Staffordshire  Collections, 

120-121   .... 

.      (1203) 

23 

6 

279 

.  (1291-2) 

80 

13             "                    " 

6 

.      (1.361)     . 

110 

15             " 

23 

.      (1389)     . 

110 

LAWS,    STATUTES,    AND   ORDINANCES. 


Salic  Law (Fiftli  Century) 

Laws  of  Ine (688-725)     .     .       327, 

Capitularv  of  Louis  le  Deboiniaire (819) 

"       "  "  "  (829) 

LawsofCnut        (1017-3-5) 

"      Henry  I (Before  1118) 

"      William  the  Conqueror       ....        (Before  1150) 

Assizes  of  Henry  II (1154-89)     ...      58 

Constitutions  of  Clarendon (1164) 

Assize  of  Clarendon (1166)     .13,26,-36 

58,60,65,68,81, 

"       Xnvih.-uni.lon (1176)13,36,57,58, 

.     58, 


"       Arms     

"       til,.  Forest        

Statute  '/(■  Afdi/nis  As-vnU  et  DitclUs     . 

Decree  of  the  Fourth  Lateran  Council       .     .     . 

Ma^cna  Carta 

Ordinance  of  3  Henry  III 

T)2  Henry  III.  c.  xxii 

'•  (St.  Marl.)c.  xiv 

Stiilufe  3  Kdwnnl  I.  (Westminster  I.)  c.  xii.      . 

"       '•         ''                         "                c.  xxxviii 
Still Mtc  iif  Wales,  12  I'.d ward  I 

13  I'.dwiird  I.  (Wcsluiin-t.r  II.)  c.  xxv.  .   .  . 

"       "  "  C.  XXX.  . 

"     '•  "       c.  xxxviii. 


.  .  .   (1181) 

.   .  .   (1184) 

{Incerti  temporis) 

,  .  .  .   (1215) 


.  .  40, 

.  .  37, 

11,  37,60, 


(1219) 
(12(;7) 
(1268) 

(1275)  .  .74,  79, 
14(;, 
(1284)  9,  1-3,  17,  67 


96, 


25 

328 

17 

48 

328 

14 

40 

,62 

,  60 

39, 

329 

,  61 

61 

58 

62 

09 

,  68 

79 

49 

140 

80 

147 

,78, 

142 

107 

171 

90 


LAWS,   STATUTES,    AND   OKDIXAXCES. 


20  Edward  I.  stat.  1,  Statute  of  Vouchers 

21 

Clement  V.,  Bull  of  .     . 

5  Edward  II.  c.  xxxiv. 

10  "  Statute  of  Gavelet 

1  Edward  III.  c.  vi.       .     .     . 


5 

c.  vii. 

14 

c.  vi. 

25 

c.  iii. 

27    " 

Ordinance  of  tl 

28 

c.  xiii. 
c.  viii. 

34    " 

c.  vii. 

37 

c.  xvi. 

42 

c.  xi. 

1  Richard  II. 

c.  vi. 

6 

C.  V. 

5  Henry  IV.  ( 

.  viii. 

1  Henry  V.  c 

.  vi. 

fi  Henrv  VI. 

c.  ii. 

11   "' 

c.  iv.  . 

15   " 

C.  V.   . 

11  Henry  VII 

c.  xxi. 

23  Henrv  VIII.  c.  iii. 

26 

c.  iv. 

27 

" 

32     " 

c.  i.  . 

34  &  35  Henry  VIII.  c 

XV.   . 

35 

c. 

vi. 

1  Edward  VI 

c.  xii. 

5  &  6  " 

c.  iv.  . 

le  Sta 


"  "  c.  xi.  and  xii. 
1  &  2  Philip  &  Mary,  c.  x. 
Laws  of  Henry  II.  of  France 
5  Elizabeth,  c.  ix.  .  .  . 
13  "  e.  XXV.  .  . 
"  c.  V.  ... 
27  "  c.  vi.  .  .  . 
43  "  c.  xii.  .  .  . 
1  .Tac.  I.  c.  viii 


4 
21 


25 


c.  1. 


St.  19  Car.  II.  c.  xxvi. 
Plymouth  Colony  Laws,  290, 
Massachusetts  Statutes 
29  Car.  II.  c.  iii.  (St.  Frauds) 
Plymouth  Colonj^  Laws 
Massachusetts  Statutes 


pie. 


Page 

(1292)  ....   41 

(12931 

.   90 

(1308) 

.   67 

(1311) 

79 

(131G) 

.   18 

(1326-7) 

.  147 

(1.331 ) 

.  147 

(1.340) 

.  142 

(1351-2) 

.   83 

(1353) 

.   94 

(1.354) 

.   94 
.  148 

(1.360) 

.  148 

(1363) 

.   95 

(1.368) 

.   92 

(1382) 

.   17 
.   28 

(1403) 

.   29 

(1413) 

.   28 

(1427) 

.   92 

(1433) 

.  149 

(14-36) 

.  67,  149 

(1495) 

.  151 

(1531) 

.  152 

(1534) 

.  162 

(1535) 

.  135 

(1540) 

.  414 

(1.542) 

.  414 

(1543) 

.   91 

(1547) 

134,  430 

(15.52) 

24,  135 

.  134 

.  .  430 

(1554-5) 

.  135 

(1550) 

.  329 

(1.362-3) 

.  102 

(1571) 

.  152 
.  214 

(1.585) 

.   91 

(1601) 

.  368 

(1603) 

.  180 

(1604) 

319,  322 

(1606) 

.  1-36 

(1623) 

.  179 
.  4.30 
.  329 

(1667) 

320,  322 

(1671) 

.  3.30 

(1672) 

.  173 

(1676) 

41.5,  430 

(168-2) 

.   33 

(1684)  . 

.  173 

XXXVl         LAWS,   STATUTES,   AND   ORDINANCES. 

Page 

7  William  III.  c.  iii (1G05)     ....  161 

9               "           c.  XV "         ....  180 

11  &  12  "          c.  vii (1700)     ....  78 

1  Anne,  c.  ix (1701)     ....  161 

4      "      c.  xvi (1705)     ....  91 

3  George  II.  c.  XXV. (1730)     ....  97 

21      "       "   c.  xviii (175] )     ....  95 

12  George  III.  c.  xx (1772)     ...     74,  78 

Massachusetts  Statutes (1783)     ....  33 

32  George  III   c.  Ix (1792)     ....  220 

59            "         c.  xlvi (1819)     ....  45 

6  George  IV.  c.  1 (1825)     ....  154 

7  iSc  8     "  c.  xxviii (1827)     ...     74,  78 

3  &  4  William  IV.  C.  xlii (1833)     ....  34 

"                  '■          c.  xiv "        ....  200 

6  &  7              "               •'          (1836)     ....  161 

1  Victoria,  c.  xxvi.  (Wills  Act) (1837)     ....  415 

15  &  16  Victoria,  c.  Ixxvi (1852)     ....  13 

(1853)     ....  367 

17  &  18          '•       c.  cxxv (1855)     ....  247 

Public  Statutes  of  Massachusetts,  c.  clxix 299 

Revised  Statutes  of  United  States,  s.  905 299 

Gen.  Stat.  Vermont, c.  xxviii 330 

"           '■                   "       s.  908 307 

25  Statutes  of  Vermont,      "      p  496 (1888)     ....  306 

56  &  57  Victoria,  c.  vii (1894)     ....  247 


PART    11. 
CHAPTER   Y. 

LAW   AND   FACT  IN  JURY  TRIALS. 

In  tracing  the  long  history  of  the  jury  and  the  way  in 
which  it  has  come  to  be  a  body  of  judges,  we  have  remarked 
the  necessity  of  separating  law  from  fact,  and  have  seen 
how  great  a  part  this  requirement  has  played  in  shaping 
our  whole  legal  system. 

Sometimes  the  discrimination  between  law  and  fact  in 
its  relation  to  jury  trials  is  identified,  in  legal  discussions, 
with  the  distinction  between  what  matter  is  for  the  court 
and  what  for  the  jury.  When  that  happens  attention  is 
drawn  at  once  to  an  important  hint,  namely,  that  the 
inquiry  relates  only  to  the  issue,  — to  the  law  and  fact 
which  are  complicated  in  the  ultimate  proposition  in  dis- 
pute. It  is  only  with  the  issue  that  juries  have  any  neces- 
sary concern;  as  regards  everything  else,  no  question  need 
arise  as  to  what  is  for  the  jury  and  what  for  the  court. 
But  beyond  this  suggestion  we  have  got  no  real  help,  in 
attempting  to  fix  the  meaning  of  law  and  fact,  from  this 
identification.  To  be  told  that  law  is  for  the  court  and 
fact  for  the  jury,  to  hear  again  the  familiar  Latin  that  ad 
quaestionevi  facti  non  respondent  judices,  ad  quaestionem 
juris  non  respondent  juratores,  enlightens  us  not  at  all  as 
to  the  true  discrimination  between  fact  and  law.  How 
then  shall  we  arrive  at  the  right  distinction? 

I.  In  trying  to  answer  that  question  let  us  ask  what 
exigency  it  was  that  called  for  juries,  inquests,  and  assizes. 


184  LAW   OF   EVIDENCE. 

Why  were  they  created  ?  The  answer  to  this  question  is 
intimated  when  we  read  their  oath,  and  the  old  precept  to 
the  sheriff  for  summoning  them.  He  was  to  summon 
those  "  who  best  can  and  will "  veritatein,  dicere.  The 
jurors  in  the  assize  of  novel  disseisin  swore,  one  after 
another,  as  Bracton  gives  it  in  his  Latin, ^  ^'  Hoc  auditis, 
justitiarii,  quod  veritateni  dicam  .  .  .  de  teneniento  de 
quo  visum  fecl;^'  and  their  verdict  was  this  promised 
veritatis  dictum.  They  were  wanted,  in  a  pending  legal 
controversy,  where  the  parties  were  at  issue  on  some 
qiiestion  of  fact,  to  say  what  the  fact  was,  and  the  phrase 
for  this  matter  of  fact  was  "rei  Veritas.'^  ^  The  truth  of 
the  tiling  about  what  ?  About  all  sorts  of  questions.  Was 
a  party  in  possession  of  something?  Did  he  disseise  some- 
body ?  Had  he  put  his  seal  to  a  paper  ?  Did  he  enfeoff 
another  of  land  ?  and  what  land  ?  What  was  the  con- 
suetudo,  the  custom,  of  such  a  place  ?  Was  a  person  legiti- 
mate, a  nativics,  an  idiot,  or  insane  ?  These  are  the  same 
questions  that  juries  pass  on  to-day,  having  in  them  the 
same  elements  of  opinion  and  of  law,  compounded  with 
those  simpler  features  which  catch  the  eye  and  ear;  ques- 
tions of  "fact,"  as  we  say.^ 

Now  although  juries  had  only  to  do  with  an  issue  of 
fact,  yet  questions  of  fact,  in  any  exact  sense,  were  by  no 
means  limited  to  the  issue.  The  courts  settled  a  great 
many  questions  of  fact  for  themselves;  they  could  not 
take  a  step  without  passing  iqjon  such  questions.  Was 
the  deed  that  was  put  forward  in  pleading  "rased"  or 
not?  If  a  i>arty  elaiiiiod  tlic  right  to  defend  himself  as  a 
iiKiimi'il    ]i(!rsoii,   was  it    I'cally  mayliom  ?     Was  a  person 

)  I'ul.  i.Hr>. 

^  Very  early  iiifttancos  of  tlio  use  of  the  term  rri  m-itns,  for  our  word 
"fact,"  may  1)0  sfcii  in  Hniiiiicr,  Scliw.  88,  ;);">,  and  lOI),  ami  IJigelow,  PI. 
A.  N.  Ill,  200,  208,  211,  2.J8. 

"  DouhtlcsM  tlio  old  customary  law  knew  little  of  our  distinction  of  law 
and  fact.  I{runiier,  Sclav.  17-48,  .31)5.  'I'ho  finding  of  the  old  consue- 
turlitirs  may  lie  likened  to  ascertaining  the  fiic.lnm  of  a  statute  in  modern 
timcH.    8ee  IJrunner,  Schw.  385,  1'.  &  M.  lliat.  Kng.  Law,  i.  81. 


LAW  AND   FACT  IN  JURY   TRIALS.  185 

who  presented  himself  and  claimed  to  be  a  minor,  really 
under  age?  A  stream  of  questions  as  to  the  reality,  the 
rei  Veritas,  the  fact,  of  what  was  alleged  before  the  justices 
was  constantly  pouring  in.  A  prisoner,  for  example,  had 
confessed;  on  being  brought  into  court,  he  declared  that 
it  was  by  duress  of  his  jailer.  \yas  this  so  ?  To  find  this 
out  the  justice  took  the  short  cut  of  sending  for  several  of 
the  fellow-prisoners  and  the  jailer,  and  questioning  them 
all  in  the  prisoner's  presence;  and  he  found  that  it  was 
not  true.^  This,  again,  is  just  as  it  is  to-day.  Courts 
pass  upon  a  vast  number  of  questions  of  fact  that  do  not 
get  on  the  record,  or  form  any  part  of  the  issue.  Courts 
existed  before  juries ;  juries  came  in  to  perform  only  their 
own  special  office;  and  the  courts  have  always  continued 
to  retain  a  multitude  of  functions  which  they  exercised 
before  ever  juries  were  heard  of,  in  ascertaining  whether 
disputed  things  be  true.  In  other  words,  there  is  not, 
and  never  was,  any  such  thing  in  jury  trials  as  an  allot- 
ting of  all  questions  of  fact  to  the  jury.  The  jury  simply 
decides  some  questions  of  fact.  The  maxim  ad  quaesHonem 
facti  non  respondent  judices,  ad  quaestionem  juris  non  re- 
S2')07ident  juratores,  was  never  true,  if  taken  absolutely.^ 
It  was  a  favorite  saying  of  Coke,  in  discussing  special  ver- 
dicts; and  in  Isaack  v.  Clark  ^  he  attributes  it  to  Bracton; 
but  that  appears  to  be  an  error;  a  careful  search  for  it  in 
Bracton  has  failed  to  discover  it.  It  seems  likely  that  this 
formula  took  shape  in  England  in  the  sixteenth  century.'' 

1  Y.  B.  30  &  31  Edw.  L  543  (area  a.  d.  1300).  "  Ecce,"  says  tlie 
justice,  "  socii  vestri  in  prisona  testijicantur  coram  vobis.  .  .  .  Vis  tu  aliwi 
alifjuid  dicere  ?  " 

2  This  "  decantafum,"  as  Vaiighan  called  it,  in  his  famous  opinion  in 
Bushell's  case  (Vaughan,  135),  appears  in  a  variety  of  forms  ;  a  common 
one  is  that  in  tlie  text.  Bulstrode  (ii.  204  and  305)  makes  Coke  say  juris- 
peritus  (and  so  Rolle,  i.  132),  and  jurisprudentes,  instead  oi  judices. 

3  Rolle,  i.  p.  132  ;  s.  c.  2  Bulst.  p.  314  (1613-14). 

4  Biener,  Eng.  Geschw.  i.  ch.  2,  s.  25  ;  ch.  5,  s.40.  Best,  Ev.  s.  82,  note, 
seems  to  be  in  error  when  he  understands  Bonnier,  Preuves,  5th  ed.,  i. 
s.  119,  to  say  that  the  maxim  "  has  been  long  known  on  the  Continent." 
Bonnier,  in  discussing  the  question  whether  the  judge  is  bound  by  the 


186  LAW   OF  EVIDENCE. 

But  the  maxim  was  never  meant  to  be  taken  absolutely. 
As  I  said,  it  is  limited  to  questions  with  which  the  jury  has 

answers  of  experts,  does  indeed  refer  to  "  le  vieil  adage  mal  a  propos 
reponduit  per  certains  auteurs  moderues,  ad  quaeationem  facti  respondent 
juratores,  ad  quae stionem  juris  respondent  judices  ;  "  but  this  writer  spoke 
as  one  familiar  with  the  phrases  of  English  legal  literature.  The  absence 
of  any  reference  to  the  maxim  in  otlier  continental  authors  to  whom  I  have 
liad  any  reference  or  access,  leads  me  to  think  tliat  Bonnier  was  merely 
quoting  le  vieil  adage  from  our  law.  Coke  seems  to  have  spawned  Latin 
maxims  freely.  Is  this  also  his  ?  and  so  his  reference  to  Bracton  merely 
to  an  authority  for  the  doctrine,  and  not  the  phrase  7  In  those  days  of 
polyglot  law  it  was  easy  for  a  man  to  slip  back  and  forth  between  his 
English,  and  his  Latin  and  law  French.  "  Come  Bracton  est  "  is  the  ex- 
pression that  Rolle  puts  into  his  mouth.  Bulstrode  merely  has  it,  "  As 
Bracton." 

It  has  been  suggested,  inasmuch  as  Bulstrode  makes  Coke,  after  giving 
the  Latin  maxim,  say:  "as  Bracton,  commentaries  in  Amy  Townsend's 
case,  fol.  iii.,"  that  Bracton  may  be  a  misprint  for  ''  Plowden,"  whose 
reports,  after  the  usual  fashion  of  that  period,  he  cites  as  "  commentaries." 
But  this  does  not  help  matters.  While  it  is  true  that  in  the  case  of  Amy 
Townsend  counsel  deal  with  the  subject,  and  point  out  the  different  duties 
of  court  and  jury,  yet  neither  in  Plowden's  original  French  nor  in  the 
English  translation,  is  any  maxim  given,  whether  Latin  or  other.  Bul- 
strode's  punctuation  is  nothing ;  it  is  always  meaningless.  Moreover,  if 
we  could  dispose  of  Bulstrode's  report  in  the  way  suggested,  it  would  still 
leave  unexplained  the  come  Bracton  est  of  Rolle's  report.  Amy  Town- 
send's case  was  argued  in  l.')53,  in  the  first  year  of  Mary.  Buller,  J.,  in 
the  Dean  of  St.  Asaph's  case,  21  How.  St.  Tr.  947  (1783),  in  charging  tlie 
jurv,  after  having  cited  a  case  at  the  end  of  the  seventeenth  century,  says, 
"  If  one  goes  still  farther  back,  we  find  it  settled  as  a  principle  which 
ailmits  of  no  disjjute,  and  laid  down  so  early  as  the  reign  of  Queen  Eliza- 
beth as  a  maxim,  tliat  ad  qiiaeslionem  facti  resjiondent  juratores,  ad  quaesti- 
onem  juris  respondent  judices.  And  in  .  .  .  Bushell's  case  the  same  maxim 
is  recognized  negatively,  namely,  ad  quaeslionem  facti  non  respondent  judi- 
ces," etc.  Buller  gives  no  more  definite  reference  to  his  authority  in  Eliza- 
betli's  time,  so  that  this  does  not  carry  us  back  of  Coke's  reports,  in  wliich 
the  maxim  frc(iuently  occurs,  e.  f].,  in  Friddleaud  Na])per's  case,  11  Co.  8  b, 
10  b  (1C12),  ill  Kdward  Altliam's  case,  8  Co.  148, 155  (1610),  the  Abbot  of 
Strata  McrccllaV  ca.so,  9  Co.  24,  25  (1590-1),  and  Downian's  case,  ib.  7  b, 
1.1  (1580).  ]t  sliould  1)0  remarked  of  Coke's  rc])orts  that  altliough  the 
maxim  is  sometimes  found,  iis  in  the  last-namfid  case,  in  tlie  course  of  a 
statement  of  a  judge's  oj>iiiion,  tliat  is  no  dear  indication  that  these  are 
tin-  judge's  words.  Coke's  met hofl  of  rcjiorting  tliickly  interlards  the  state- 
ment of  both  court  and  counsel  witii  his  own  discursive  talk.    A  comparison, 


LAW  AND  FACT  IN  JURY  TRIALS.  187 

to  do;  it  relates  only  to  issues  of  fact,  and  not  to  the  inci- 
dental questions  that  spring  up  before  the  parties  are  at 
issue,  and  before  the  trial;  and  so  of  many  of  those  which 
present  themselves  during  the  trial.  The  maxim  has 
nothing  to  do  with  matters  of  evidence,  but  only  with  a 
limited  class  of  questions  of  fact;  namely,  questions  raised 
by  the  pleadings,  questions  of  ultimate  faot.^ 

If,  then,  we  limit  the  inquiry  to  the  issue,  in  what 
sense  and  how  far  is  the  maxim  true?  It  is  true,  («)  As 
stating  the  great,  general  rule  that  the  regular  common- 
law  mode  of  trying  questions  of  fact  is  by  jury.  For 
example,  it  is  accurately  said  by  Coke:^  "The  most  usual 
trial  of  matters  of  fact  is  by  twelve  such  men;  for  ad 
quaestioneni  facti  non  respondent  j  ltd  ices;  and  matters  in 
law  the  judges  ought  to  decide  and  discuss ;  for  ad  quaes- 
tionem  juris  non  respondent  juratores.^^  (b)  In  a  sense 
that  is  intended  to  emphasize  the  limitations  of  the  jury, 
to  say  that  it  is  07ili/  fact  which  they  are  to  decide.  "  Noii 
est  juratoribus  judicare"  was  the  judgment  of  the  court  in 
1554,  when  an  inquest  of  office  had  found  a  conclusion  of 
law ;  ^  or  as  the  counsel  expressed  it  in  another  report 
of  the  case :  *  "  The  office  of  twelve  men  is  .  .  .  not  to 
adjudge  what  the  law  is ;  for  that  is  the  office  of  the  court, 
and  not  of  the  jury."  (c)  In  a  sense  which  emphasizes 
the  right  of  the  jury  in  all  cases  to  limit  themselves  to 
their  own  province,  of  fact,  and  to  leave  with  the  judges 
the  determination  of  the  law  applicable  to  the  facts  thus 
returned;  their  right  to  give  a  special  verdict.     And  so, 

for  example,  of  his  report  of  Dowman's  case  with  what  other  reporters 
give,  tends  to  confirm  the  opinion  that  it  is  Coke  who  is  talking  when  he 
gives  this  maxim,  and  so  that  he  remains  still  our  earliest  authority  for  it. 

1  Bartlett  v.  Smith,  11  M.  &  W.  483  ;  Bennison  v.  Jewison,  12  Jurist, 
485  ;  s.  c.  1  Ames,  Bills  and  Notes,  512. 

2  Co.  Lit.  155  b. 

8  Dyer  (ed.  1601),  106b;  and  see  Hill  v.  Hanks,  2  Bulst.  p.  204  (1614); 
Isaack  v.  Clark,  ih.  p.  314  (1614-15);  King  v.  Poole,  Cas.  t.  Hardwicke, 
p.  28  (1734). 

4  Plowden,  p.  114. 


188  LAW   OF   EVIDENCE. 

"It  was  resolved  by  Sir  Ed.  Anderson,  chief  justice,  and 
all  the  justices  of  the  bench,  that  the  special  verdict  was 
well  founded;  they  held  that  in  all  pleas  .  .  .  and  upon 
all  issues  joined,  .  .  .  the  jury  may  find  the  special 
matter  .  .  .  [and]  pray  the  opinion  of  the  court  ...  by 
the  common  law,  which  has  ordained  that  matters  in  fact 
shall  be  tried  by  jurors,  and  matters  in  law  by  the  judges; 
and  as  ad  quaestlo7iem,"  etc.-' 

It  is  true  that  Coke  had  a  way  of  generalizing  the  matter 
and  quoting  the  maxim  as  if  it  represented  a  limitation 
upon  the  judges  as  wide  and  full  and  exact  as  that  upon  the 
jury.^    But  although  it  became  thus  a  loose  rhetorical  flour- 

1  Dowman's  Case,  9  Co.  pp.  12-13  (1586). 

2  Aud  accordingly  he  sometime-s  gets  quoted  in  this  country  for  a  doc- 
trine that  would  have  much  amazed  him  or  any  other  English  judge,  from 
the  beginning  down ;  namely,  for  the  notion  that  the  court,  at  common 
law,  has  no  right  to  indicate  to  the  jury  its  own  views  of  the  facts.  See, 
for  example,  the  dissenting  opinion  of  Daniel,  J.,  in  IMitchell  v.  Harmony, 
1.3  Howard,  115,  141-148.  This  doctrine  has  widely  found  expression  in 
tlie  statutes  of  our  States.  "  In  1 796  the  North  Carolina  legislature  amended 
the  common-law  rule  by  prohibiting  judges  from  expressing  an  opinion 
on  the  facts."  Walter  Clark,  in  4  Green  Bag,  457,  472,  who  quotes  the 
e.Kcelleut  adverse  comments  on  this  practice,  by  Ruffin,  J.,  in  State  v. 
Moses,  2  Dev.  452.  In  Massachusetts  this  change  was  introduced  in  1860 
(Gen.  St.  c.  115,  s.  5),  in  the  form  that  "  The  courts  shall  not  charge  juries 
with  respect  to  matters  of  fact,  but  may  state  tlie  testimony  and  the  law." 
It  is  not  too  much  to  say  of  any  period,  in  all  Englisli  history,  that  it  is 
impossible  to  conceive  of  trial  by  jury  as  existing  there  in  a  form  whicli 
would  withliold  from  tiie  jury  tlie  assistance  of  the  court  in  dealing  with 
the  facts.  I'rial  by  jury,  in  sncii  a  form  as  that,  is  not  trial  by  jury  in  any 
historic  sense  of  the  words.  It  is  not  the  venerated  institution  which 
attracted  the  prai.so  of  Hlackstune  and  of  our  ancestors,  but  sometliing 
novel,  modern,  and  much  loss  to  l)c  respected. 

In  tiie  I'\Mlcral  courts  tiio  common-law  (h)ctrine  on  tliis  subject  has 
alw.'iys  bcld.  "  In  the  courts  of  tlio  United  States,  as  in  tlioso  of  England, 
from  wbicli  our  practice  was  derived,  the  judge,  in  submitting  a  case  to  the 
jury,  may,  at  liis  discretion,  whenever  Ik;  tliinks  it  neces.sary  to  assist  them 
in  arriving  at  a  just  conclusion,  comment  on  the  evidence,  call  their  atten- 
tion to  parts  of  it  whii-li  lie  thinks  imj)ortant,  and  express  his  ()j)inion  upon 
th<^  facts.  .  .  .  The  jxiwor  of  the  courts  of  the  United  States  in  this  respect 
is  not  controllcil  liy  tlie  stalutes  of  the  State  forbidding  judges  to  express 


LAW  AND  FACT  IN  JURY  TRIALS.  189 

ish  and  ornament  of  his  pedantic  speech,  we  must  not  be 
misled  by  that.  Its  true  significance  may  still  be  drawn 
out  thus :  In  general,  issues  of  fact,  and  only  issues  of  fact, 
are  to  be  tried  by  a  jury.  When  they  are  so  tried,  the 
jury,  and  not  the  court,  are  to  find  the  facts ;  and  the  court 
and  not  the  jury  is  to  give  the  rule  of  law.  The  jury  are 
not  to  refer  the  evidence  to  the  judge  and  ask  his  judg- 
ment upon  that,  but  are  to  find  the  facts  which  the  evi- 
dence tends  to  establish,  and  may  only  ask  the  court  for 
its  judgment  upon  these.  That  this  determination  by  the 
jury  involves  a  process  of  reasoning,  of  judgment  and 
inference,  makes  no  difference;  for  it  is  the  office  of  jurors 
"to  adjudge  upon  their  evidence  concerning  matter  of  fact, 
and  thereupon  to  give  their  verdict;  and  not  to  leave 
matter  of  evidence  to  the  court  to  adjudge,  which  does  not 
belong  to  them."  ^ 

II.  Having  now  a  general  conception  of  the  scope  and 
meaning  of  the  old  maxim,  let  us  come  closer  to  our  ques- 
tions, and  try  to  find  some  definition  of  "fact,"  and  to 
reach  a  clear  legal  discrimination  between  fact  and  law. 

To  define  fact  is,  indeed,  a  '"'•peri/lous  chose,"  as  they 
say  in  the  Year  Books;  and  some  persons  think  it  unneces- 
sary.^    It  is  certainly  true  that  the  term  is  widely  used  in 

any  opinion  upon  the  facts."  Gray,  J.,  for  the  court,  in  Vicksburg,  etc. 
R.  R.  Co.  V.  Putnam,  118  U.  S.  545,  553  (1886).  And  so  McLanahan  v. 
Ins.  Co.,  1  Pet.  170,  182  (1828),  ami  Simmons  v.  U.  S.,  142  U.  S.  148,  155 
(1891).  In  U.S.  V.  Phil,  and  Reading  R.  R.  Co.,  123  U.  S.  113,  114  (1887), 
the  court  said  :  "  Trial  by  jurj'  in  the  courts  of  the  United  States  is  a  trial 
presided  over  by  a  judge,  with  authority,  not  only  to  rule  upon  objections 
to  evidence,  and  to  instruct  the  jury  upon  the  law,  but  also,  when  in  his 
judgment  the  due  administration  of  justice  requires  it,  to  aid  the  jury  by 
explaining  and  commenting  upon  the  testimony,  and  even  giving  them 
his  opinion  upon  questions  of  fact,  provided  only  he  submits  those  ques- 
tions to  their  determination." 

1  Littleton's  Case  (1612),  cited  in  10  Co.,  p.  56  b.  "  A  verdict  is  only  a 
judgment  given  upon  a  comparison  of  proofs,"  said  Lee,  C.  J.,  in  Smith  d. 
Dormer  v.  Parkhurst,  Andrews,  315,  332  (1738).  And  Lord  Bacon,  in  his 
Life  of  Henry  VII.  {supra,  151,  n.  6),  characterized  verdicts  as  Judicia 
juratorum,  quae  veredicta  vocnntnr. 

2  For  instance,  as  to  definitions  in  general,  a  verj-  able  writer  in  the  ■ 


190  LAW  OF  EVIDENCE. 

the  courts,  mucli  as  it  is  used  in  popular  speech,  —  that  is 
to  say,  in  a  tentative,  literary,  inexact  way.  But  as  our 
law  develops  it  becomes  more  and  more  important  to  give 
definiteness  to  its  phraseology;  discriminations  multiply, 
new  situations  and  complications  of  fact  arise,  and  the  old 
outfit  of  ideas,  discrimiuations,  and  phrases  has  to  be  care- 
fully revised.  Law  is  not  so  unlike  all  other  subjects  of 
human  contemplation  that  clearness  of  thought  will  not 
help  us  powerfully  in  grasping  it.  If  terms  in  common 
legal  use  are  used  exactly,  it  is  well  to  know  it;  if  they 
are  used  inexactly,  it  is  well  to  know  that,  and  to  remark 
just  how  they  are  used. 

1.  "  Fact "  and  its  other  forms,  factum,  fait,  stand  in  our 
law  books  for  various  things,  e.  g.,  (a)  for  an  act ;  just  as 
the  word  "fact"  does  in  our  older  general  literature. 
"Surely,"  says  Sir  Thomas  Browne,^  "that  religion  which 
excuseth  the  fact  of  Noah,  in  the  aged  surprisal  of  six 
hundred  years,"  etc.;  and  so  Bracton:^  "Since  he  is  not 
the  agent  of  the  one  who  made  him  essoiner,  it  is  not  for 
him  to  prove  another's  status  or  another's  act"  (factuvi). 
(h)  For  that  completed  and  operative  transaction  which  is 
brought  about  by  sealing  and  executing  a  certain  sort  of 

Solicitors'  Journal  (vol.  20,  8G9)  says  :  "  A  definition  is  the  most  difficult 
of  all  things.  There  is  far  greater  probability  of  a  correct  use  of  terms 
than  of  a  correct  definition  of  tliem.  The  best  definition,  therefore,  is  that 
by  use.  A  correct  use  renders  definition  unnecessary,  because  the  law  will 
speak  plainly  witliout  it.  And  where  it  is  unnecessary  to  define,  it  is  also 
dangerous,  liccausc  an  incorrect  definition  will  confound  the  correct  use," 
etc.  That  is  a  true  utterance  of  the  inherited  instinct  of  English-speaking 
lawyers  and  judges.  But  it  is  cpiite  certain  tliat  as  our  law  grows  it  must 
be  subjected  m«jre  and  more  to  the  scrutiny  of  the  legal  scholar,  and  that 
it  will  pnifit  by  any  serious  and  comi)etenl  effort  to  clarify  and  restate  it. 

1  I'siudotloxla  Ki>idcmirn,  Book  v.  cli.  xxiii.  s.  16;  on  the  Vulgar  Error 
that  "  It  is  good  to  be  drunk  once  a  month."  So  in  St.  S."}  II.  \'1H.  c.  21, 
H.  1.  "  Have  (Urtested  licr  for  this  fact."  And  so  Governor  Bradford  in 
his  "  HistDrv  of  I'lvninut.h  ('olony,"  in  si)caking  of  tiie  first  execution  in 
tiic  colonv,  tli.il  (if  .I'lliii  I'.illiiiglnii,  for  niuiilcr:  "His  fact  was  that  he 
.  .  .  HJiothim  \\illi  a  gun."      r:ig(!  ISO;   (ud.  16'.)8)  330. 

2  Fol.  .•i.!7. 


LAW  AND  FACT  IN  JURY  TRIALS.  191 

writing;  and  so  for  the  instrument  itself,  the  deed  (factum), 
(c)  As  designating  wliat  exists,  in  contrast  with  what 
should,  rightfully,  exist,  —  de  facto  as  contrasted  with  de 
jure.  "The  whole  condition  of  things  in  the  insurgent 
States  was  matter  of  fact,  rather  than  matter  of  law,"  said 
the  Chief  Justice  of  the  United  States  in  1868.^  (d)  And 
so,  generally,  as  indicating  things,  events,  actions,  condi- 
tions, as  happening,  existing,  really  taking  place.  This 
last  is  the  notion  that  concerns  us  now.  It  is  what  Locke 
expresses  ^  when  he  speaks  of  "  some  particular  existence, 
or,  as  it  is  usually  termed,  matter  of  fact."  The  funda- 
mental conception  is  that  of  a  thing  as  existing,  or  being 
true.  It  is  not  limited  to  what  is  tangible,  or  visible,  or 
in  any  way  the  object  of  sense;  things  invisible,  mere 
thoughts,  intentions,  fancies  of  the  mind,  when  conceived 
of  as  existing  or  being  true,  are  conceived  of  as  facts. 
The  question  of  whether  a  thing  be  a  fact  or  not,  is  the 
question  of  whether  it  is,  whether  it  exists,  whether  it  be 
true.  All  inquiries  into  the  truth,  the  reality,  the  actual- 
ity of  things,  are  inquiries  into  the  fact  about  them. 
Nothing  is  a  question  of  fact  which  is  not  a  question  of 
the  existence,  reality,  truth  of  something;  of  the  rel 
Veritas.^ 

1  Thorington  v.  Smith,  8  Wall.  1,  13. 

2  Human  Understanding,  Bk.  iv.  c.  16,  s.  5. 

3  Beutham,  who  is  not  very  instructive  here,  defines  thus  :  "  By  a  fact 
is  meant  the  existence  of  a  portion  of  matter,  inanimate  or  animate,  eitlier 
in  a  state  of  motion  or  in  a  state  of  rest."  But  he  divides  facts  into  ( 1 ) 
physical  and  psychological ;  (2)  events  and  states  of  things;  (3)  positive 
and  negative  ;  adding  that  "  the  only  really  existing  facts  are  positive 
facts.  A  negative  fact  is  the  non-existence  of  a  positive  one,  and  nothing 
more."  (Works,  vi.  217-218.)  And  so  Best,  Ev.  ss.  12,  13.  Holland 
(Jurisprudence,  8th  ed.  92)  simply  says:  "'Facts'  (Thatsachen,  Faits), 
which  have  been  inadequately  defined  as  'transient  causes  of  sensation/ 
are  either  '  Events  '  or '  Acts.'  "  Sir  Wm.  Markhy  (Law  IMag.  and  Review, 
4tli  Series,  ii.  at  p.  312),  in  a  neat  and  valuable  discussion  of  "Law  and 
Fact,"  after  remarking  that  he  would  rather  not  pledge  himself  to  any 
final  definition  of  what  a  fact  is,  adopts  for  his  immediate  purpose  Stephens* 
definition  in  the  first  two  editions  of  his  Digest  of  Evidence,  art.  1,  namely, 


192  LAW   OF   EVIDENCE. 

But  this,  it  may  be  said,  is  a  portentous  sort  of  defini- 
tion ;  it  is  turning  every  question  into  a  question  of  fact. 
That  is  true,  so  far  as  any  question  asks  about  the  exist- 
ence, the  reality,  the  truth  of  something.  But,  obviously, 
in  actual  legal  use  the  term  has  other  limitations.  As 
regards  the  present  discussion,  we  have  noticed  that 
"fact"  is  confined  to  that  sort  of  fact,  ultimate  fact,  which 
appears  in  the  pleadings  and  is  the  subject  of  the  issue. 
Moreover,  even  in  the  issue,  that  kind  of  fact  which  we 
call  "  law  "  is  discriminated,  and  set  apart  under  its  own 
name. 

2.  What,  then,  do  we  mean  by  "  law  "  ?  We  mean,  at 
all  events,  a  rule  or  standard  which  it  is  the  duty  of  a 
judicial  tribunal  to  apply  and  enforce.  It  is  not  my 
present  purpose  to  discuss  the  nature  or  origin  of   law.^ 

"'Fact'  means  (1)  everything  capable  of  being  perceived  by  the  senses, 
(2)  every  mental  condition  of  which  any  person  is  conscious."  But  Stephen 
afterwards  withdrew  this  definition.  He  had  been  keenly  criticised  by  a 
writer  in  the  Solicitors'  Journal  (vol.  xx.  869,  870  ;  Sept.  9,  1876),  who  said, 
"  The  proper  subject  of  affirmation  and  negation  is  not  '  facts,'  but  propo- 
sitions;" and,  among  other  valuable  remarks,  inquired  how  it  was  with 
such  matters  as  negligence,  custom,  ownership,  the  defamatory  quality  of 
a  writing,  and  the  qualities  of  persons  and  tilings  generally.  "  The  phrase- 
ology," he  added,  "  is  really  applicable  only  to  the  rudest  form  of  juris- 
prudence." The  writer  himself  thought  that  no  definition  is  necessary. 
The.se  criticisms  took  effect ;  in  Ids  tliird  edition,  and  all  later  ones,  Stephen 
dropj)ed  any  attempt  at  definition,  and  substituted  in  art.  1,  this:  "  '  Fact' 
includes  the  fact  that  any  mental  condition  of  which  any  person  is  con- 
scious exists  ;  "  and  in  his  preface  to  the  third  edition,  after  saying  tliat  he 
"had  l)eon  led  to  modify  the  definition  of  fact  by  an  acute  remark  made 
on  tliis  subject  in  the  Solicitors'  .Journal,"  he  added  tliat  "•  Tlie  real  object  of 
the  definition  was  to  show  that  I  used  the  word  '  fact '  so  as  to  include 
states  of  mind."  See  the  learned  consideration  whether  a  thing  be  quid 
fact!  nr  quid  juris,  in  Menochiufl,  De  Prarsiimptionibns,  Lib.  1,  qu.  11.  See 
definitions  of  fact  as  contrasted  with  opinion,  in  Sir  George  Cornewall 
Lewis's  "  Influence  of  Authority  in  Matters  of  Opinion." 

1  See  James  C.  Carter's  "  The  Ideal  and  tlio  Actual  in  Law,"  Kcports 
of  the /\mcricaii  Har  Association,  vol.  xiii  217;  Holmes,  Common  l>aw, 
35-38,  l.'iO-l,  and  "The  Path  of  the  Law,"  10  Harv.  L.  Kov.  4.57  ;  Markby, 
Elements  of  Law,  c.  1,  ss.  l-.'H  ;  Hollaml,  Eh^ments  of  .Turis|)ru<icnce 
cc.  ii.-vi.  iucluaivo;  Austin,  J uri.sp.  (Loudon,  Murray,  1873)  i.  103-106  ■■ 


LAW  AND  FACT  IN  JURY  TRIALS.  193 

How  tlie  rule  or  standard  comes  into  existence,  where  it 
is  found,  just  what  the  nature  of  it  is,  how  far  it  is  the 
command  of  a  supreme  political  power,  and  how  far  the 
silently-followed  habit  of  the  community,  —  these  and 
other  like  questions  there  is  no  occasion  to  consider  now. 
It  is  enough,  here,  to  say,  that  in  the  sense  now  under 
consideration,  nothing  is  law  that  is  not  a  rule  or  standard 
which  it  is  the  duty  of  judicial  tribunals  to  apply  and 
enforce.  I  do  not  need  to  consider  whether  all  general 
standards  that  courts  apply  are  to  be  called  law;  that 
matter  I  pass  by ;  ^  it  is  enough  for  our  present  purpose 
to  say,  that  unless  there  be  a  question  as  to  a  rule  or  stan- 
dard which  it  is  the  duty  of  a  judicial  tribunal  to  apply, 
there  is  no  question  of  law.  The  inquiry  whether  there 
be  any  such  rule  or  standard,  the  determination  of  the 
exact  meaning  and  scope  of  it,  the  definition  of  its  terms, 
and  the  settlement  of  incidental  questions,  such  as  the 
conformity  of  it,  in  the  mode  of  its  enactment,  with  the 
requirements  of  a  written  constitution,  are  all  naturally 
and  justly  classed  together  and  allotted  to  the  same  tri- 
bunal; and  these  are  called  questions  of  law.^ 

III.  We  must  discriminate  further.  Besides  questions 
of  fact  and  law,  there  are  questions  of  which  Austin  has 
remarked^  that  they  are  questions  neither  of  law  nor  of 
fact,  — questions  of  reasoning,  of  the  application  of  law  to 
fact,  questions  of  method,  of  procedure.  "It  is  the  office 
of  jurors  to  adjudge  upon  their  evidence;  "  so  the  court  is 
reported  to  have  said  in  Littleton's  case.*     That  remark 

Maine's  Ancient  Law,  cc.  1  and  2 ;  Christian's  note  to  1  Bl.  Com.  74 ; 
Lord  Esher,  M.  R.,  in  Cochrane  v.  Moore,  25  Q.  B.  D.  57  ;  E.  R.  Thayer, 
"Judicial  Legislation,"  5  Harv.  L.  Rev.  172. 

1  Markby,  ubi  supra.  If  a  jury  cannot,  in  point  of  reason,  find  a  ver- 
dict, they  cannot  as  a  matter  of  law ;  and  such  questions  go  up  on  ex- 
ceptions. Denny  v.  Williams,  5  Allen,  1 ;  Lane  v.  Moore,  151  Mass. 
87,  91. 

'■^  See  infra,  257. 

3  Jurisp.  i.  236  (ed.  1873) ;  infra,  251. 

4  Supra,  189. 

13 


194  LAW  OF   EVIDENCE. 

brings  out  a  fundamental  point,  so  obvious  as  hardly  to 
need  stating;  namely,  that  it  is  no  test  of  a  question  of  fact 
that  it  should  be  ascertainable  without  reasoning  and  the 
use  of  the  "'adjudging"  faculty;  much  must  be  conceived 
of  as  fact  which  is  invisible  to  the  senses,  and  ascertain- 
able only  in  this  way.  Of  course,  by  the  judges  this 
function  of  reasoning  has  constantly  been  exercised;  the 
sentence  just  quoted  makes  it  apparent  that  it  must  also 
be  discharged  by  juries.  We  are  not,  then,  to  suppose 
that  a  jury  has  found  all  the  facts  merely  because  it  has 
found  all  that  is  needed  as  a  basis  for  the  operation  of  the 
reasoning  faculty;  the  right  inference  or  conclusion,  in 
point  of  fact,  is  itself  matter  of  fact,  and  to  be  ascertained 
by  the  jury.  As  regards  reasoning,  the  judges  have  no 
exclusive  office;  the  jury  also  must  perform  it  at  every 
step.^ 

There  comes  up  for  consideration,  then,  this  matter  of 
reasoning:  a  thing  which  intervenes,  e.  g.,  in  questions  of 
negligence  and  the  like,  between  the  primary  facts,  what 
may  be  called  the  raw  material  of  the  case,  and  the  second- 
ary or  ultimate  facts;  just  as  it  intervenes,  in  the  court's 
questions  of  the  interpretation  of  statutes  and  other  writ- 
ings, between  the  bare  words  of  the  document  and  the 
ascertainment  of  its  legal  meaning.^  It  woiild  be  strain- 
ing our  word  "procedure"  beyond  due  limits  to  say  that 

1  "  It  is  not  because  facts  are  admitted  that  it  is  therefore  for  the  judge 
to  say  what  the  decisiou  upon  tiiein  sliould  he.  If  the  facts  wliicii  are 
admitted  are  capable  of  two  e<iualiy  possible  views,  which  reasonable 
people  inay  take,  and  one  of  them  is  more  consistent  with  the  case  for  one 
party  than  for  the  other,  it  is  the  duty  of  the  judge  to  let  tlio  jury  decide 
between  such  conflicting  views."  Bowen,  Ij.  J.,  in  Davey  v.  London  &  S. 
W.  l{y.  Co.,  12  Q.  B.  I).  70,  76  {188.'5).  In  citing  this  pas.sage  with  approval, 
Williams,  J.,  in  I'earco  v.  Lansdowne,  69  L.  T.  Rep.  316  (189,'}),  said  :  "  I 
do  not  ijelievo  that  because  the  facts  are  admitted  the  functions  of  the  jury 
as  to  drawing  inferences  from  them  are  altered  at  all." 

^  As  in  determining  what  was  covered  by  the  word  "  place,"  in  a  statute 
forbidding  iictling  in  any  "  house,  oflice,  room,  or  otlier  place;  "  a  matter 
whi(di  was  the  Bul)joct  of  elaborate  discussion  by  six  judges,  and  of  dissent, 
in  Powell  v.  Kcniptou  I'ark  Co.  [1897],  2  Q.  B.  242. 


LAW  AND  FACT  IN  JURY  TRIALS.  195 

-reasoning  is  part  of  the  procedure,  for  reasoning  is  essen- 
tial everywhere  in  the  law ;  yet  one  may  get  a  useful  hint 
by  regarding  it,  for  a  moment,  in  that  light.  As  the  pro- 
cedure, and  method  of  trial,  are  to  be  discriminated  from 
both  law  and  fact,  which  make  up  the  subject-matter  that 
is  to  be  dealt  with  in  these  ways  and  methods,  —  so  we 
may  separate  from  law  and  fact  the  process  by  which  con- 
clusions are  reached;  namely,  the  process  of  reasoning. 
As  both  court  and  jury  must  take  notice  without  proof,  of 
much  that  is  assumed  as  known  to  all  men,  and  especially 
to  all  who  are  concerned  in  judicial  inquiries,  so  each  must 
conduct  the  familiar,  if  unobserved,  processes  of  reasoning 
in  accomplishing  the  ends  of  its  own  department.  It  is 
true  that  the  jury  was  not  brought  into  existence  because 
the  court  needed  help  in  the  mere  business  of  reasoning, 
but  simply  to  report  upon  the  fact,  the  7'ei  Veritas  ;  reason- 
ing, however,  founded  upon  general  and  particular  expe- 
rience, was  unavoidable.  Courts  might  always  have  done 
their  own  reasoning,  after  a  fashion,  if  they  had  been  in 
possession  of  a  full  supply  of  primary  fact;  but  they  were 
not;  and  when  once  juries  were  called  in,  at  no  period  of 
their  history  could  they  discharge  their  special  function  of 
ascertaining  and  reporting  facts,  without  going  through 
a  process  of  reasoning.  "While  the  juror's  oath,"  said 
Bracton,^  "has  in  it  three  associated  things  (comites), 
truth,  justice,  and  judgment,  it  is  truth  that  is  to  be  found 
in  the  jutot,  Justitia  et  jxidicium  in  the  judge.  But  some- 
times judgment  seems  to  belong  to  jurors,  since  they  are 
to  say  on  their  oath,  yet  according  to  their  belief,  whether 
so  and  so  disseised  so  and  so,  or  not."  And  again, '^  "If 
the  jurors  state  the  fact  as  it  is  {factum  narraverint  sicut 
Veritas  se  hahuerit),  and  afterwards  judge  the  fact  accord- 
ing to  their  statement  of  it,  and  err,  they  make  a  mistaken 
judgment  rather  than  a  false  one,  since  they  go  upon  a 
belief  that  such  a  judgment  follows  such  a  fact." 

Bracton  uses  the  expression  "they  judge  the  fact."     We 

1  Fol.  186  b.  2  Fol.  290  b. 


196  LAW  OF  EVIDENCE. 

can  observe  tlie  real  nature  of  this  operation  by  looking  at 
the  case  of  expert  witnesses  to  fact.  What  is  their  func- 
tion ?  It  is  just  this,  of  judging  facts  and  interpreting 
them.  They  are  called  in  because,  being  men  of  skill, 
they  can  interpret  phenomena  which  other  men  cannot,  or 
cannot  safely,  interpret.  They  "judge"  the  phenomena, 
the  appearances  or  facts  which  are  presented  to  them,  and 
testify  to  that  which  in  truth  these  signify  or  really  are; 
they  estimate  qualities  and  values.  We  say  that  they  tes- 
tify to  opinion.  In  truth,  they  are  "judging"  something, 
and  testifying  to  their  conclusion  upon  a  matter  of  fact. 
It  is  perfectly  well  settled,  in  our  law,  and,  as  it  would 
seem,  elsewhere,^  that  such  opinions  or  judgments  are 
merely  those  of  a  witness ;  they  are  simply  to  aid  the  final 
judges  of  fact,  and  not  to  bind  them.  The  last  judgment 
is  still  for  the  jury,  or  other  judge  of  fact;  ^  that  judgment 
is  not  one  of  law.  In  Germany,  this  discrimination  is 
clearly  expressed :  "  Experts  judge  only  of  the  relation  of 
phenomena  perceived  by  the  senses  to  general  rules  of 
their  art  or  science ;  but  not  at  all  of  the  relation  of  a  fact 
to  legal  rules  {Rechtsiuahrheiten) ;  that  is  merely  the  judge's 
affair.  ...  In  contrast  with  his  judgment,  what  the  ex- 
pert decides  is  simply  a  fact;  it  is  no  more  nor  less  than  a 
mere  witness's  declaration;  and  this  fact,  like  every  other, 
the  judge  has  to  refer  to  the  appropriate  rule  of  law.  For 
this  reason  experts  are  called  judices  facti,  — judices  as 

^  "  It  is  not  true,  as  is  so  gonorally  claimed,  .  .  .  that  on  the  Continent 
the  opinion  of  the  expert  is  binding  on  the  court.  ...  I  do  not  find  it  to  be 
the  case  by  law,  anywhere,  that  the  opinion  of  the  expert  may  encroach 
on  the  functions  of  the  court,  whatever  the  result  attained,  due  to  placing 
the  expert  in  a  more  responsible  and  trustworthy  position,  may  be.  Ober- 
meyer's  book  teaches  this  doctrine  throughout,  and  all  the  codes  I  have 
peen,  or  seen  quoted,  so  provide.  For  instance.  Art.  323  of  the  [French] 
Code  de  proc. :  Las  juf/es  ne  soint  astreints  a  suivre  I'avis  des  experts,  si  leur 
convictinn  s'l/  oppose.  .  .  .  See  also  Art.  377  of  the  Code  of  the  German 
empire."  —  Clcnioris  Ilcrschel,  Erperls  in  .ludirial  Inquiries.  Boston, 
Alfred  Mudge,  I'rintcr,  1H86. 

2  Head  r.  Ilargravo,  lO.")  U.  S.  4.');  Ol.sen  v.  Gjcrtsen,  42  Minn.  407 
(1890)  ;  and  so  in  France;  Bonnier,  Prenves,  5th  ed.  s.  119. 


LAW   AND   FACT   IN  JURY   TRIALS.  19T 

opposed  to  ordinary  witnesses,  judices  facti,  because  tliey 
do  not  judge  as  to  the  law,  but  their  judgment  or  opinion 
only  gives  as  its  result  a  fact."  ^ 

We  have  thus  noticed  a  tertlum  quid,  the  process  of 
reasoning,  which  we  have  set  aside  as  relating  to  processes 
and  methods  in  arriving  at  law  or  fact.  Another  thing 
was  brought  to  notice  in  the  passage  from  Littleton's  case,'^ 
and  is  constantly  presenting  itself,  namely,  "matter  of  evi- 
dence." The  jury,  it  was  there  said,  "are  not  [by  a  spe- 
cial verdict]  to  leave  matter  of  evidence  to  the  court  to 
adjudge;"  they  are  themselves  "to  adjudge  upon  that  evi- 
dence concerning  matter  of  fact." 

Now,  "matter  of  evidence"  is  here  discriminated  from 
"matter  of  fact."  Of  course  it  is  not  to  be  classed  with 
"matter  of  law,"  and  although  properly  designated,  in 
ordinary  cases,  as  "matter  of  fact,"  it  is  not  matter  of  fact 
in  the  sense  which  is  specially  involved  in  the  present  dis- 
cussion. What,  then,  is  it?  It  is  something  incidental, 
subsidiary,  belonging  where  the  matter  of  reasoning  be- 
longs. Indeed,  it  is  only  the  material  and  basis  for  rea- 
soning. When  it  is  said  that  fact  is  for  the  jury,  the  fact 
intended,  as  we  have  seen,  is  that  which  is  in  issue,  the 
ultimate  fact,  that  to  which  the  law  directly  annexes  con- 
sequences, that  thing  which,  in  a  special  verdict,  the  jury 
must  plainly  find,  and  not  leave  to  the  court  to  find. 
Issues  are  not  taken  upon  evidential  matter.  Of  evidence, 
the  same  thing  is  to  be  said  which  we  have  already  said  of 
the  reasoning  that  is  founded  upon  it;  namely,  that  it  is 
for  both  court  and  jury,  according  as  either  has  occasion  to 
resort  to  it. 

I  have  spoken  of  evidence  and  reasoning  as  belonging  to 

1  Dr.  W.  H.  Puchta  in  Zeitschrift  fur  Civilrecht  und  Prozess,  iii.  57. 
Compare  Das  Archiv.fur  die  Civilistische  Praxis,  xxvi.  255-6.  For  these 
and  some  other  German  references  I  am  indebted  to  my  friend,  Mr. 
Fletcher  Ladd.  See  also  Bonnier,  Preuces,  ubi  supra.  There  was  formerly 
a  maxim  Periti  potius  judices  sunt  quam  testes.  —  Herschel,  ubi  supra. 

2  Supra,  189. 


198  LAW  OF  EVIDENCE. 

the  region  ■which  dealt  with  the  processes  and  methods  of 
arriving  at  the  law  and  fact  that  are  involved  in  an  issue. 
In  expressing  this,  it  has  been  said,  with  what  may  seem 
a  certain  violence  of  phrase,  that  they  belong  with  pro- 
cedure. It  will  be  useful  to  indicate  here,  a  little  more 
plainly,  just  what  is  meant  by  this.  Procedure  deals  with 
the  machinery  by  which  legal  controversies  are  settled. 
Reasoning,  as  we  have  already  seen,^  the  rational  method 
of  settling  disputed  questions  is  the  modern  substitute  for 
certain  formal  and  mechanical  "trials,"  or  tests,  which 
flourished  among  our  ancestors  for  centuries,  and  in  the 
midst  of  which  the  trial  by  jury  emerged.  When  two  men 
to-day  settle  which  is  the  "best  man"  by  a  prize-fight,  we 
get  an  accurate  notion  of  the  old  Germanic  "trial."  Who 
is  it  that  "  tries  "  the  question  ?  The  men  themselves. 
There  are  referees  and  rules  of  the  game,  but  no  determina- 
tion of  the  dispute  on  grounds  of  reason,  —  by  the  rational 
method.  So  it  was  with  "  trial  by  battle  "  in  our  old  law ; 
the  issue  of  right,  in  a  writ  of  right,  including  all  ele- 
ments of  law  and  fact,  was  "tried"  by  this  physical 
struggle;  and  the  judges  of  the  Common  Pleas  sat,  like  the 
referee  at  a  prize-fight,  simply  to  administer  the  procedure, 
the  rules  of  the  game.  So  of  the  King's  Bench  in  crimi- 
nal appeals;  and  so  Richard  II.  at  the  "trial"  of  the 
appeal  of  treason  between  Bolingbroke  and  Norfolk,  as 
Shakespeare  represents  it  in  the  play.  So  of  the  various 
ordeals;  the  accused  party  "tried"  his  own  case  by  under- 
going the  given  requirement  as  to  hot  iron,  or  water,  or 
the  crumb.  So  of  the  oath;  the  question,  as  regards  both 
law  and  fact,  was  "tried"  merely  by  the  oath,  with  or 
without  fellow-swearers.  The  old  "trial  by  witnesses" 
was  a  testing  of  the  question,  in  like  manner,  by  their 
mere  oath.  So  a  record  was  said  to  "try  "  itself.  And  so, 
when  out  of  tlie  midst  of  these  methods  first  came  the  trial 
by  jury,  it  was  the  jury's  oath,  or  rather  their  verdict, 
that  "tried"  tlie  case.  P>ut  now,  when  we  use  the  phrases 
1  Supra,  c.  i.  16  n. 


LAW  AND  FACT  IN  JURY   TRIALS.  199 

"trial"  and  "trial  by  jury,"  we  mean  a  rational  ascertain- 
ment of  facts,  and  a  rational  ascertaining  and  application 
of  rules.  What  was  formei-ly  "tried"  by  the  method  of 
force  or  the  mechanical  following  of  form,  is  now  "  tried " 
by  the  method  of  reason. 

At  an  earlier  page  ^  we  have  seen  that  in  the  older  days 
the  word  "law,"  lex,  sometimes  indicated  a  form  of  pro- 
cedure; not  law,  in  our  sense  of  substantive  law,  but  a 
mode  of  trial.  This  comes  out  clearly  in  an  exposition  of 
the  phrases  lex  et  consuetudo  in  the  old  custumal  of  Nor- 
mandy,^ where  we  read:  ''^  Consuetudlnes  are  customs, 
followed  from  ancient  times,  allowed  by  rulers  and  kept 
up  by  the  people,  determining  whose  anything  is  or  where 
it  belongs.  But  Leges  are  what  is  instituted  by  rulers  and 
kept  up  by  the  people  in  the  country,  for  settling  particu- 
lar controversies.  Leges  are  a  sort  of  legal  instrument  for 
declaring  the  truth  of  controversies.  Usages  (Usus)  relate 
to  the  leges ;  for  usus  are  the  ways  in  which  we  use  the 
leges.  To  illustrate :  the  consuetudo  is,  that  a  widow  has 
the  third  part  of  the  fief  that  her  husband  possessed  at  the 
time  of  the  marriage.  But  if  a  controversy  arises  as  to 
whether  he  did  then  possess  the  fief  in  which  she  claims 
dower,  it  is  to  be  settled  per  legem  inquisitionis,  and  the 

1  Supra,  28. 

2  L'Ancienne  Coutume  de  Normandie  (compiled  a.  d.  1270-1275),  c.  xi. 
De  Consuettidine:  "  Consiietudines  vero  sunt  mores  ab  antiquitate  habiti, 
a  principibus  approbati,  et  a  populo  conservati,  quid  cujus  sit  vel  ad  quod 
pertinet  limitantes.  Leges  autem  sunt  institutiones  a  principibus  factae  et  a 
populo  in  provincia  conservatae,  per  quas  contentiones  singulae  deciduntur. 
Sunt  enim  leges  quasi  instrumenta  in  jure  ad  contentionum  declarationeni 
veritatis.  Usus  autem  circa  leges  attendunt;  sunt  enim  usus  modi  quibus 
legibus  uti  debemus.  Verbi  gratia:  consuetudo  est  quod  relicta  habeat 
tertiam  partem,  feodi  quod  vir  suus  tempore  contractus  matrimonii  possi- 
debat.  Si  autem  coutentio  oriatur  de  aliquo  feodo  quod  tunc  ille  noii 
possidebat,  ipsa  tamen  in  eodem  dotem  reclamante,  per  legem  inquisitiouis 
et  liujusmodi  contentio  habet  terminari.  Usus  autem  sunt  modi  quibus 
hujusmodi  lex  habet  fieri ;  Videlicet,  per  duodecim  juratos  et  non  suspectos, 
et  feodo  prius  viso."  Cited  in  Brunner,  Schw.  177.  See  also  Stephen. 
Pleading,  note  36. 


200        ,  LAW   OF  EVIDENCE. 

like.  And  tlie  ^ls^^s  are  the  ways  in  which  such  a  lex  is 
to  be  performed,  namely,  by  twelve  persons,  under  oath, 
worthy  of  credit,  who  have  inspected  the  fief." 

Readers  of  Sir  Henry  Maine's  books  will  recall  the 
emphasis  which  he  puts  upon  procedure  in  early  systems 
of  law.  The  Salic  law,  he  tells  us,  "deals  with  thefts  and 
assaults,  with  cattle,  with  swine,  and  with  bees,  and,  above 
all,  with  the  solemn  and  intricate  procedure  which  every 
man  must  follow  who  would  punisli  a  wrong  or  enforce  a 
right."  And  again:  "So  great  is  the  ascendency  of  the 
Law  of  Actions  in  the  infancy  of  courts  of  justice,  that 
substantive  law  has  at  first  the  look  of  being  gradually 
secreted  in  the  interstices  of  procedure;  and  the  early 
lawyer  can  only  see  the  law  through  the  envelope  of  its 
technical  forms."  ^  Our  inherited  system,  as  we  have 
already  seen, ^  kept  in  existence  until  a  period  within  liv- 
ing memory  a  phrase  which  comes  straight  down  from 
those  early  days.  Until  the  year  1833^  certain  cases  in 
England  could  be  tried  ^^e?-  legem  ;  a  man  waged  his  laAv 
(yadiare  legem),  i.  e.,  gave  pledges  for  performing  it;  and 
afterwards  performed  his  law  (^facere  legem).  In  the  old 
Germanic  law  there  were  many  of  these  leges,  or  modes 
of  trial.  Trial  by  battle  was  the  lex  ultrata ;  by  the 
ordeal,  tlie  lex  apparens,  manifesta,  or  jf>ar/^i7is;  by  the 
single  oath,  tlie  lex  simplex;  by  the  oath  with  compurga- 
tors, the  lex  prohahilis,  or  the  lex  disraisinae  ;  by  record, 
the  lex  recordationis ;  by  inquest,  or  the  assize,  lex  inquisi- 
tionis  and  recognitionis.*  Our  phrase  "law  of  the  land" 
comes  down  out  of  the  midst  of  all  this.  "A  man,"  says 
Cilrinville,  "may  make  his  villein  free,  so  far  as  his  rela- 
tions to  himself  or  his  own  heirs  are  concerned.  But  if 
tli«!  villrjii  sliould  be  brought  into  court  against  a  stranger 

1  Early  Law  .-iikI  Ciistoin,  108,  389. 

2  Sii/ira,  v.  I. 

*  Stilt.  .3  &  4  U'lii.  IV.  c.  42,  8.  1.3,  supra,  p.  .It. 

*  On  tliiH  sul.joct  sec  IW-iiiiiKT,  Sc'Iiw.  )>i).  108  ei  seq. ;  Spclmau,  Gloss. 
Hull  for.  Ijx;   iMicaiigc,  il>. 


LAW  AND   FACT  IN  JURY   TRIALS.  201 

ad  diracionationem  faciendam  .  .  .  vel  ad  aliquem  legem, 
terre  faciendam,"  etc.  "By  lex  terrae  is  meant,"  says 
Bruiiner,^  "the  procedure  of  the  old  popular  law."  This 
old  use  and  conception  of  lex  is  to  be  explained  by  what 
Sir  Henry  Maine  has  said  at  the  end  of  his  "Early  Law," 
from  which  I  have  already  quoted.  All  the  primitive 
codes  "seem  to  begin  with  judicature,  and  to  distribute 
substantive  law  into  '  heads  of  dispute. '  "  "  The  authority 
of  the  Court  of  Justice  overshadowed  all  other  ideas  and 
considerations  in  the  minds  of  those  early  code-makers." 
"  It  must  have  been  a  man  of  legal  genius  who  first  dis- 
cerned that  law  might  be  thought  of  and  set  forth,  apart 
from  the  Courts  of  Justice  which  administered  it,  on  the 
one  hand,  and  apart  from  the  classes  of  persons  to  whom 
they  administered  it,  on  the  other." 

Turning  back,  now,  from  these  old  conceptions  to  our 
own,  we  may  observe  again  that  while,  of  course,  there  are 
rules  and  laws  of  procedure,  and  while,  of  course,  these 
are  to  be  ascertained  by  the  judges,  they  are  not  what  is 
meant  (still  less  is  meant  a  mode  of  trial)  when  we  con- 
trast the  law  and  fact  that  are  blended  in  the  issue. 
There  the  conception  of  law  is  purely  that  of  the  substan- 
tive law  which  is  applicable  to  the  "facts,"  namely,  the 
ultimate  facts  that  are  in  question,  —  of  the  legal  conse- 
quences and  implications  that  are  bound  up  with  these 
facts. 

1  Schw.  254,  325,  180.     Seidell's  notes  to  Fortescue,  De  Laud.  c.  26. 

In  the  Dialogus  de  Scaccario,  ii.  7  (1176-1177),  the  writer  says  that  by 
judicia,  he  means  Jetjes  candentis  ferri  vel  aquae.  Glanvill,  xiv.  c.  1,  says 
the  accused  person  is  to  clear  himself /^er  dei  jtidicium,  scilicet  per  callidum 
ferrum  vel  per  aqiiam.  lb.  c.  2,  as  regards  the  hiding  of  treasure  trove,  oh 
infamiam  autem  non  solet,  juxta  legem  terre,  aliqiiis  per  legem  apparentem  xe 
purgai-e,  etc.  In  2  Rot.  Cur.  Reg.  173  (1199-1200)  one  defendant  is  adjudged 
to  defend  himself  by  the  judgment  of  fire  and  another  by  the  duel.  Of  the 
first  it  is  said,  vadiavit  legem.  Of  the  second,  vadiavit  duellum.  And  then 
both  are  called  leges,  —  a  day  is  given  them  for  making  leges  suas.  Brac- 
ton,  410,  in  speaking  of  compurgation,  says,  Formantur  autem  verba  legis 
secundum  formam  recordi,  sicut  in  omnibus  aliis  legihus  faciendis  obscrvatur, 
etc. 


202  LAW   OF   EVIDENCE. 

And  we  may  also  remark  again  that  equally  the  topics 
of  evidence  and  of  reasoning,  dealing,  as  they  do,  with  the 
processes  and  methods  of  our  modern  "trials,"  and  being, 
as  they  are,  a  part  of  the  machinery  and  procedure  by 
which  these  trials  reach  their  ends,  belong  one  side  of  our 
subject. 

IV.  We  have  now  made  our  definitions  and  principal 
discriminations.^  But,  as  I  said  at  the  outset,  the  allot- 
ment to  the  jury  of  matters  of  fact,  even  in  the  strict  sense 
of  fact  which  is  in  issue,  is  not  exact.  The  judges  have 
always  answered  a  multitude  of  questions  of  ultimate  fact, 
of  fact  which  forms  part  of  the  issue.  It  is  true  that  this 
is  often  disguised  by  calling  them  questions  of  law.  In 
the  elaborate  and  carefully  prepared  codification  of  the 
criminal  law,  which  has  long  been  pending  in  the  British 
Parliament,  we  are  told,  of  "attempts  to  commit  offences," 
that  "the  question  whether  an  act  done  or  omitted  with 
intent  to  commit  an  offence  is  or  is  not  only  preparation 
.  .  .  and  too  remote  to  constitute  an  attempt  ...  is  a 
question  of  law."^  In  a  valuable  letter  of  Chief  Justice 
Cockburn,  addressed  to  the  Attorney-General,  and  com- 
menting on  the  Draft  Code,^  he  justly  criticised  this  pas- 
sage :  "  To  this  I  must  strenuously  object.  The  question 
is  essentially  one  of  fact,  and  ought  not,  because  it  may  be 
one  which  it  may  be  better  to  leave  to  the  judge  to  decide 
than  to  submit  it  to  a  jury,  to  be,  by  a  fiction,  converted 
into  a  qiiostion  of  law.  .  .  .  The  right  mode  of  dealing 
with  a  question  of  fact  which  it  is  thought  desirable  to 
withdraw  from  the  jury  is  to  say  that  it  shall,  though  a 
question  of  fact,  be  determined  by  the  judge."  The  same 
sf)rt  of  thing  which  is  thus  objected  to  is  extremely  com- 
mon ill  judicial  language  here.^ 

'  Ah  rcipanls  wliat  arc  ciiIUmI  mixed  quoHtioiiH  of  law  and  fact,  sce/«/"ra, 
225,251. 

2  Hoporl  of  Criminal  f'udf  I'.ill  Commission  (1870),  Draft  Code,  s.  74. 

3  T)aled  .Jniif  12,  187!l,  and  ]irinl('i|  \)y  order  of  the  House  of  Commons. 
*  As  wlieu  we  arc  told  :  "  1  apprcheiul  that  whether  au  instrument  of 


LAW  AND   FACT   IN  JURY   TRIALS.  203 

Among  questions  of  fact  which  are  commonly  treated 
in  this  way  a  conspicuous  illustration  is  found  in  the  con- 
struction of  writings.  It  is  not  uncommon  to  call  the 
interpretation  and  construction  of  writings  "a  pure  ques- 
tion of  law." '  That  it  is  a  question  for  the  judge  there  is 
no  doubt.  But  when  we  consider  to  what  an  extent  the 
process  of  interpretation  is  that  of  ascertaining  the  inten- 
tion of  the  writer,  —  his  expressed  intention,  —  irrespec- 
tive of  any  rules  of  law  whatever,  and  when  we  come  to 
undertake  the  details  of  such  an  inquiry,  it  is  obvious  that 
most  of  this  matter  is  not  referable  to  law  but  to  fact. 
The  judge  has  to  ascertain  the  usual  meaning  of  words  in 
the  vernacular  language,  and  what  modifications  of  that 
meaning  are  allowable  as  a  mere  matter  of  the  fair  use  of 
language;  also,  the  fair  meaning  or  the  permissible  mean- 
ing of  the  composition  of  these  words,  —  how  far  one  part 
relates  to  and  modifies  another,  and  how  far  the  general 
sense  of  the  whole  controls,  displaces,  or  supersedes  the 
more  common  effect  of  any  particular  words  and  phrases. 
Such  questions  are  addressed  to  the  trained  faculties  of  an 
educated  man,  acquainted  with  the  use  and  the  rules  of 
language,  and  with  the  sort  of  business  to  w^hich  the  writ- 
ing relates,  and  may  be  settled  merely  by  a  critical  read- 
ing of  the  paper.  Moreover  "  the  meaning  of  words  varies 
according  to  the  circumstances  of  and  concerning  which 
they   are   used."  ^      When   once   these   circumstances   are 

writing  be  under  seal  or  not,  is  a  question  of  law,  to  be  solved  by  the  court 
from  the  inspection  of  the  instrument  itself."  —  Kennedy,  J.,  for  the  court, 
in  Duncan  v.  Duncan,  1  Watts,  322,  325. 

1  Hamilton  ;;.  Ins.  Co.,  13.5  U.  S.  242,  2.55.  Just  as  it  is  sometimes 
said  of  another  well-known  question,  "  What  facts  and  circumstances 
amount  to  probable  cause  is  a  pure  question  of  law."  Stone  'v.  Crocker, 
24  Pick.  84.  In  Lyle  v.  Richards,  L.  R.  1  H.  L.  222,  241,  Lord  Westbury 
said  :  "  It  is  no  doubt  true  that  the  construction  of  written  instruments  is 
matter  of  law,  and  that  when  a  written  instrument  is  laid  before  jurymen 
they  are  bound  to  receive  the  interpretation  of  the  effect  of  that  instrument 
from  the  judge." 

2  Blackburn,  J.,  in  AUgood  v.  Blake,  L.  R.  8  Ex.  160. 


204  LAW   OF   EVIDENCE. 

known,  i.  e.,  all  the  extrinsic  facts  which  may  legally 
affect  the  iuterpretation,  then  the  courts  exercise  the  right 
to  determine  the  bearing  of  these  facts  on  the  words  of  the 
writing,  and  the  combined  effect  of  words  and  facts  as 
touching  the  expression  of  intention.  This  may  not  in- 
volve any  question  of  law  in  the  exact  sense,  for  the  an- 
swer may  depend  on  no  legal  rule,  but  only  on  the  rules, 
principles,  or  usages  of  language  and  grammar,  as  applied 
by  sense  and  experience.  So  far,  then,  as  the  meaning 
of  a  document  is  to  be  determined  merely  by  reading  it 
in  the  light  of  ascertained  facts,  attending  the  making  of 
it,  we  are  presented  with  no  question  of  law,  in  any  strict 
sense  of  the  word;  it  is  a  question  for  the  court,  but  not 
a  question  of  law. 

But  of  course  the  construction  of  writings  has  always  to 
take  account  of  whatever  rules  of  law  may  be  applicable 
to  the  subject;  and  always  there  is  a  question  to  be  deter- 
mined by  the  courts,  how  far  any  such  rules  of  law  exist 
in  the  particular  instance;  such  as  the  important  rules 
which  limit  the  process  to  the  text  alone,  as  illustrated 
by  the  circumstances  to  which,  either  in  terms  or  tacitly, 
it  refers;  and  which  determine  when  and  how  far  extrinsic 
matter  may  be  used  in  aid  of  interpretation.  There  are 
also  many  specific  legal  rules,  presumptive  or  absolute, 
for  the  interpretation  of  particular  words  or  phrases.  So 
that,  of  course,  the  mere  grammatical  process  of  interpre- 
tation has  to  be  carried  on,  shaped,  and  restrained,  in  con- 
formity with  these  rules  of  law,  whatever  they  may  be. 
And  sometimes  these  legal  rules,  technical  and  strict, 
exclude  all  search  after  the  actual  intention  of  the  writer; 
for  although,  in  some  instances  where  only  the  interests 
of  the  writers  are  concerned,  tliis  intention  may  well  be  a 
dociisive  consideration,  in  other  writings,  designed  to  affect 
the  rights  ot'tliiid  ]»ersons,  and  successive  generations  of 
tliem,  it  may  not  be  i)ermissible  to  allow  the  strict  and 
te(!linical  meaning  of  tlu^  terms  to  1)e  varied  by  any  refer- 
ence to  wliat  tlie  writei-  really  meant. 


LAW  AND   FACT  IN  JURY  TRIALS.  205 

The  subject,  however,  is  too  large  and  intricate  for  any- 
thing more  than  a  passing  reference  at  this  point. ^  Any- 
general  statements  about  writings  must  be  subject  to  de- 
ductions, for  there  is  a  great  diversity  of  them.  There 
are  "records,"  judicial  and  legislative,  such  as  statutes, 
judgments,  pleadings, — the  proving,  use,  and  application 
of  which  were  the  subject  of  legal  rules  before  juries  were 
born.  These  rules  largely  hold  their  place  to-day,  for  rea- 
sons of  sense  and  convenience.  There  are  written  texts  of 
law,  questions  about  which  (some  of  them  at  least,  those  of 
the  domestic  forum)  belong  to  the  judges.  There  are  deeds, 
charters,  and  wills,  operative  instruments,  which  are  the 
subjects  of  speciiic  legal  rules  as  to  their  constitution, 
form,  and  phraseology.  There  is  negotiable  paper,  of 
which  the  like  is  true.  There  are  the  ordinary  contracts 
in  writing,  or  written  memoranda,  required  by  law.  There 
are  writings  not  required  by  law,  but  made  by  choice  of 
the  parties  to  be  a  memorial  of  a  transaction.  And  there 
are  other  writings  of  a  merely  casual  nature,  like  ordinary 
correspondence.  Many  writings  used  to  be  regarded  as  in 
themselves  constituting,  or  rather  furnishing  by  the  mere 
inspection  of  them,  a  mode  of  "trial"  for  what  they  re- 
ported; as  records  did.  If  such  a  writing  were  once 
authenticated,  it  closed  inquiry.  On  the  other  hand  such 
writings,  even  records  and  statutes,  might  be  merely  evi- 
dential; as  when  a  deed,  in  a  question  of  prescription, 
went  to  the  jury  as  evidence  of  the  fact  of  ancient  posses- 
sion, and  not  to  show  the  date  of  its  beginning.^  But, 
whatever  their  character,  and  however  used,  the  construc- 
tion of  writings,  when  once  the  facts  necessary  for  fixing 
it  have  been  ascertained,  whether  properlj'-  to  be  called  a 
matter  of  fact  or  of  law,  was  a  matter  for  the  courts  and 
not  for  the  jury.^     This  has  always  been  so.      Writings 

^  See  infra,  c.  x. 

2  Y.  B.  34  H.  VL  fol.  30,  pi.  7  (1456);  s.  c.  Thayer's  Cas.  Evid.  210. 

3  Parke,  B.,  in  Hutchinson  v.  Bowker,  5  M.  &  W.  535,  542,  "  The  law 
I  take  to  be  this,  —  that  it  is  tlie  duty  of  the  court  to  construe  all  written 


206  LAW  OF  EVIDENCE. 

came  into  general  use  and  got  into  the  courts,  mainly 
through  the  Roman  ecclesiastics/  and  it  was  natural  that 
the  Roman  methods  of  dealing  with  them  should  be  adopted; 
and,  once  adopted,  that  they  should  not  be  changed  when 
new  modes  of  trial,  such  as  the  trial  by  jury,  came  in. 
Often  the  jury  could  not  read.^  It  may  be  added  that  an 
established  judicial  usage  like  this  has  always  been  power-  ■ 
fully  supported  by  considerations  of  good  sense  and  expe- 
diency. Of  a  great  part  of  the  writings  brought  under 
judicial  consideration,  it  is  true  that  they  were  made,  as 
Bracton  says,  to  eke  out  the  shortness  of  human  life,  "  ad 
perpetuam  memoriam,  propter  hrevem  hoininum  vitam." 
Such  things,  so  important  to  a  short-lived  race  of  creat- 
ures, so  long  enduring,  should  have  a  fixed  meaning; 
should  not  be  subject  to  varying  interpretations;  should 
be  construed  by  whatever  tribunal  is  most  permanent,  best 
instructed,  most  likely  to  adhere  to  precedents. 

iustruinents ;  if  there  are  peculiar  expressions  used  in  it,  which  have  in 
particular  places  or  trades  a  known  meaning  attached  to  them,  it  is  for  the 
jury  to  say  what  the  meaning  of  these  expressions  was,  but  for  the  court 
to  decide  what  the  meaning  of  the  contract  was."  And  again  the  same 
accurate  judge  stated  the  matter  in  Neilson  v.  Harford,  8  M.  &  W.  806, 
823,  "  The  construction  of  all  written  instruments  belongs  to  the  court 
.alone,  whose  duty  it  is  to  construe  all  such  instruments,  as  soon  as  the 
true  meaning  of  the  words  in  which  they  are  couched,  and  the  surround- 
ing circumstances,  if  any,  have  been  ascertained  as  facts  by  the  jury;  and 
it  is  the  duty  of  the  jury  to  take  the  construction  from  the  court,  either 
absolutely,  if  there  be  no  words  to  be  construed  as  words  of  art,  or 
plirases  used  in  commerce,  and  no  surrounding  circumstances  to  be 
ascertained;  or  conditionally,  when  tliose  words  and  circumstances  are 
necessarily  referred  to  them.  Unless  this  were  so,  there  would  be  no  cer- 
t.iiiity  in  the  law ;  for  a  misconstruction  by  the  court  is  tlie  proper  subject 
by  means  of  a  l)ill  of  exceptions,  of  redress  in  a  court  of  error;  but  a  mis- 
construction by  the  jury  cannot  be  set  riglit  at  all  effectually."  And  so 
see  Key  v.  Cotesworth,  7  Ex.  .'595;  Brown  v.  McGrau,  14  Peters,  479,  493  ; 
Smith  IK  Kaulkner,  12  Gray,  2.'jl,  2.'J4;  Graham  v.  Sadlier,  16.5  111.  95. 

'  Anglo-Saxon  Law,  2.")(). 

2  See,  e.  7.,  as  late  as  1790  iho.  roasoning  of  Lord  Konyon  in  Macferson 
V.  ThoyteH  (Peakc,  20),  "  Comparison  of  h;ui(ls  is  no  evidence.  If  it  were 
80,  the  situation  of  a  jury  wlio  could  ncitiicr  write  nor  read  would  be  a 
Htrango  one,  tor  it  is  imjiossible  for  such  a  jury  to  compare  tlie  handwriting." 


LAW  AND  FACT  IN  JURY  TRIALS.  207 

On  this  and  similar  grounds  of  policy,  and  especially, 
and  more  and  more  so  as  time  went  on,  for  fear  the  jury 
should  decide  some  question  of  law  that  was  complicated 
with  the  fact,  many  other  questions  of  fact  have  been 
retained  by  the  judges,  either  studiously  and  by  design, 
or  as  a  more  or  less  accidental  result  of  practice.  Whether 
there  is  malice  in  cases  of  homicide,  and  what  is  sufficient 
"cooling-time"  where  there  was  provocation;^  and,  in 
actions  for  malicious  prosecution,  whether  the  cause  for 
instituting  the  prosecution  is  "reasonable  and  probable,"^ 
are  well-known  illustrations  of  this.  From  like  motives 
courts  refused  to  allow  juries  to  find  a  general  verdict  in 
cases  of  criminal  libel. ^ 

V.  If  it  be  asked  how  the  judges,  sometimes  with  and 
sometimes  without  the  cooperation  of  the  parties,  have 
been  able  to  work  all  this  out,  it  must  be  remembered  that 
in  England  the  judges  have  always,  in  theory,  been  great 
ministers  of  the  Crown;  and  that  even  to  this  day  much 
of  the  reality  and  many  visible  signs  and  symbols  of  this 
high  place  and  power  remain.  Here,  also,  as  well  as 
there,  the  function  of  directing  the  administration  of  jus- 
tice, of  steadying  and  making  it  consistent  by  rules  bind- 
ing on  juries  no  less  than  on  judges  and  litigants,  and 
of  ascertaining  and  construing  the  substantive  law,  carries 
with  it  great  power.  Let  us  look  at  the  operation  of  this 
in  some  of  its  particulars. 

1.  In  the  exercise  of  their  never-questioned  jurisdiction 
of  declaring  the  common  law,  during  all  the  long  period  of 
its  secular  growth  in  England  and  America,  there  has 
arisen  constant  occasion  for  specifying  the  reach  of  defi- 
nite legal  rules,  and  so  of  covering  more  and  more  the 
domain  of  hitherto  unregulated  fact.  This  has  consisted, 
in  a  great  degree,  in  declaring  the  scope  and  operation  of 
sound  reason,   wherein  the  common  law  so  largely  con- 

1  R.  V.  Oneby,  2  Lord  Raymond,  p.  1494. 

2  Abrath  v.  N.  E.  Ry.  Co.,  11  App.  Cas.  247. 
8  Com.  V.  Anthes,  5  Gray,  212-219. 


208  LAW  OF   EVIDENCE. 

sists.^  With  the  growth  of  knowledge  and  human  expe- 
rience, and  with  the  multiplied  new  application  of  maxims 
of  reason  and  sense  to  combinations  of  fact,  both  new  and 
old,  the  judges,  in  such  a  system  as  ours,  are  thus  forever 
advancing,  incidentally,  but  necessarily  and  as  part  of 
their  duty,  on  the  theoretical  province  of  the  legislator 
and  the  juryman.^ 

2.  Especially  has  this  function  come  into  play  in  super- 
vising and  regulating  the  exercise  of  the  jury's  office. 
Herein  lies  one  of  the  most  searching  and  far-reaching 
occasions  for  judicial  control  —  that  of  keeping  the  jury 
within  the  bounds  of  reason.  This  duty,  as  well  as  that 
of  preserving  discipline  and  order,  belongs  to  the  judge  in 
his  mere  capacity  of  presiding  officer  in  the  exercise  of 
judicature.  Reason  is  not  so  much  a  part  of  the  law, 
as  it  is  the  element  wherein  it  lives  and  works;  those 
who  have  to  administer  the  law  can  neither  see,  nor 
move,  nor  breathe  without  it.  Therefore,  not  merely 
must  the  jury's  verdict  be  conformable  to  legal  rules,  but 
it  must  be  defensible  in  point  of  sense;  it  must  not  be 
absurd  or  whimsical.  This,  of  course,  is  a  different  thing 
from  imposing  upon  the  jury  the  judge's  own  private 
standard  of  what  is  reasonable.  For  example,  when  the 
original  question  for  the  jury  is  one  of  reasonable  conduct, 
and  a  court  is  called  on  to  revise  the  verdict,  the  judges 
do  not  undertake  to  set  aside  the  verdict  because  their  own 
opinion  of  the  conduct  in  question  differs  from  the  jury's.^ 
Tliey  are   not  an  appellate   jury.      The  question  for  the 

1  Co.  Tnst.  97  h. 

2  For  illustrations  of  this,  see  E.  K.  Tliayor,  Jndic'uil  Legislation, 
5  Ilarv.  Law  l?ov.  172. 

8  Stackus  I),  n.  n.  Co.,  70  N.  Y.  4f.4 ;  Rtcvoiisou  7k  U.  S.,  162  U.  S.  313. 
]?ut  tho  ooiirts  in  tliis  clnss  of  cases  arc  makiiif^  new  doctrines  of  law, 
e.  7.,in  ro-qiiirinK  peojdc  to  stop,  look,  and  listen  before  crossing  a  railway; 
as  ill  l':i.  K.  M.  r.  nvMo,  73  Pa.  .504;  and  the  "hicycler's  stop''  will  not 
serve:  he  mnst,  disinonnt.  L'ohertson  7t.  Pa.  R.  71.  Co.,  180  Pa.  43.  In 
A'eriiioiil  a  ]>:u-\y  need  not  stop.  Manloy  v.  Canal  [K.  P.]  Co.,  69  Vt 
101. 


LAW  AND   FACT   IN  JURY  TRIALS.  209 

court  is  not  whether  the  conduct  ultimately  in  question, 
e.  g.,  that  of  a  party  injured  in  a  railway  accident,  was  rea- 
sonable, but  whether  the  jury's  conduct  is  reasonable  in 
holding  it  to  be  so;  and  the  test  is  whether  a  reasonable 
person  could,  upon  the  evidence,  entertain  the  jury's  opin- 
ion. Can  the  conduct  which  the  jury  are  judging,  reason- 
ably be  thought  reasonable  ?    Is  that  a  permissible  view  ?^ 

1  Infra,  223.  This  matter  has  been  neatly  and  accurately  handled  by 
Lord  Halsbury,  in  the  House  of  Lords. 

A  few  years  before,  in  Solomon  v.  Bitton,  8  Q.  B.  D.  176  (1881),  in  an 
action  of  trover  the  substantial  question  for  the  jury  was  whether  they 
believed  the  jilaiutiff's  or  the  defendant's  witnesses.  On  an  application 
by  the  defendant  for  a  new  trial  on  the  gi'ouud  that  the  verdict  was  against 
the  weight  of  evidence,  the  trial  judge.  Sir  N.  Lindley,  expressed  him- 
self as  dissatisfied  with  the  verdict,  and  a  new  trial  was  oniered.  On  appeal 
this  order  was  reversed,  the  court  (Jessel,  M.  R.,  and  Brett  and  Cotton, 
L.J  J.)  saying  that  the  rule  in  such  cases  ought  not  to  depend  on  whether 
the  judge  who  tried  the  case  was  dissatisfied  with  the  verdict  or  would 
have  come  to  the  same  conclusion,  "  but  whether  the  verdict  was  such  as 
reasonable  men  ought  to  come  to." 

In  1886,  in  The  Metropolitan  Railway  Company  v.  Wright,  11  App. 
Cas.  152  (1886),  in  a  case  involving  the  question  of  negligence,  the  Divi- 
sional Court  (Lord  Coleridge,  C.  J.,  and  Stephen,  J.),  had  ordered  a  new 
trial  on  the  ground  that  the  verdict  was  against  the  weight  of  evidence. 
The  Court  of  Appeal  (Selborne,  L.  C,  Brett,  M.  R.,  and  Lindley,  L.  J.) 
reversed  this  decision  ;  and  the  House  of  Lords  sustained  the  reversal. 
The  Lord  Chancellor  Herschell  laid  down  the  principle  that  "  the  verdict 
ought  not  to  be  disturbed  unless  it  was  one  wliicli  a  jury,  viewing  the  whole 
of  the  evidence  reasonably,  could  not  properly  find."  And  then  Lord 
Halsbury,  in  a  short  and  excellent  statement,  put  the  matter  with  preci- 
sion :  "  My  Lords,  the  facts  of  this  case  may  of  course  be  differently  viewed 
by  different  minds.  I  am  content  with  the  view  of  the  facts  as  stated  by 
the  Lord  Chancellor,  and  I  am  disposed  to  think  that  I  should  have  found 
the  same  verdict.  But  what  I  take  to  be  of  supreme  importance,  as  defin- 
ing the  functions  of  judges  and  juries,  is  the  principle  upon  which  a  new 
trial  can  be  granted,  upon  the  ground  that  a  verdict  is  against  the  weight 
of  evidence.  Now  I  think  that  the  principle  laid  down  in  Solomon  v. 
Bitton  is  erroneous,  as  reported,  in  the  use  of  the  word  '  ought.'  If  a 
court  —  not  a  Court  of  Appeal  in  which  the  facts  are  open  for  original 
judgment,  but  a  court  which  is  not  a  court  to  review  facts  at  all — can 
grant  a  new  trial  whenever  it  thinks  tliat  reasonable  men  ought  to  liave 
found  another  verdict,  it  seems  to  me  that  they  must  form  and  act  upon 

14 


210  LAW   OF   EVIDENCE. 

We  might  anticipate  that  this  clear  but  delicate  line 
would  often  be  overstepped.  It  often  has  been.  It  is  the 
line  which  was  under  discussion  in  an  important  modern 
suit  for  libel,  ^  when,  in  considering  the  power  of  the 
court,  on  a  motion  in  arrest  of  judgment,  Lord  Penzance 
insisted  that  a  court  could  not  take  the  case  from  the  jury, 
if  the  publication  was  reasonably  capable  of  a  libellous 
construction.  On  the  other  hand  it  was  laid  down  by 
Lord  Blackburn  that  the  court,  on  this  particular  question, 
unaffected  by  Fox's  Act,  was  to  judge  for  itself;  and  he 
added,  "  It  seems  to  me,  that  when  the  court  come  to  de- 
cide whether  a  particular  set  of  words,  published  under 
particular  circumstances,  are  or  are  not  libellous,  they 
have  to  decide  a  very  different  question  from  that  which 
they  have  to  decide  when  determining  whether  another 
tribunal,  whether  a  jury  or  another  set  of  judges,  might 
not  unreasonably  hold  such  words  to  be  libellous."  That 
this  vital  discrimination  has  been  neglected,  in  a  great 
many  cases  where  the  court  has  had  to  review  the  action 
of  the  jury,  there  is  abundant  reason  to  believe.'^ 

their  own  view  of  what  the  evidence  in  their  judgment  proves.  This,  I 
think,  is  not  the  law.  If  reasonable  men  mitjht  find  (not  '  ought  to,'  as  was 
said  in  Solomon  v.  Bitton)  the  verdict  wiiich  has  been  found,  I  think  no 
court  has  jurisdiction  to  disturb  a  decision  of  fact  which  the  law  has  con- 
fided to  juries,  not  to  judges.  My  noble  and  learned  friend  on  the  woolsack 
has  put  the  proposition  in  a  form  which  is  not  open  to  objection,  but  which 
perhaps  leaves  open  for  definition  in  what  sense  the  word  '  properly  '  is  to 
be  used.  I  tliink  the  test  of  reasonableness,  in  considering  the  verdict  of 
a  jury,  is  right  enough,  in  order  to  understand  whether  the  jury  have 
really  done  tlieir  duty.  If  tiieir  finding  is  absolutely  unreasonable,  a  court 
may  consider  tliat  tliat  sl)ows  tliat  they  liave  not  really  pen-formed  the 
judicial  (hity  cast  upon  tliem  ;  but  the  princijilo  must  be  that  the  judgment 
upon  the  facts  is  to  be  tlie  judgment  of  tlie  jury  and  not  tlic  judgment  of 
any  other  triimnal.  If  tiic  word  '  might '  were  sul)stitutod  for  '  ought  to  ' 
in  Solomon  v.  Billon,  I  think  the  principle  would  be  accurately  stated." 

1  Capital  and  Counties  Bank  v.  Ilcnty,  7  App.  Ca.s.  741  ;  s.  c.  31  W.  R. 
157  ;  Hazy  v.  Woitkc,  2.1  Col.  5.5G. 

■■^  This  di.stinction  is  of  fundamental  importance  in  constitutional  law, 
where  courtH  are  roviowing  tlio  action  of  legislatures  and  considering 
whether  they  have  kept  within  the  limits  of  legislative  power.     Compare 


LAW  AND   FACT  IN  JURY  TRIALS.  211 

The  point  may  be  further  illustrated  by  cases  on  the 
subject  of  necessaries  for  an  infant.  Formerly,  in  such 
cases,  the  plaintiff,  in  reply  to  the  plea  of  infancy,  put 
upon  record  the  facts  which  were  thought  to  identify  the 
articles  as  necessaries.  Nowadays  these  facts  are  not 
pleaded.  The  former  practice  tended  to  give  the  parties 
the  court's  opinion;  now  they  get  the  jury's,  which  may 
be  a  very  different  matter.  The  jury's  verdict  is,  indeed, 
subject  to  the  court's  revision;  but  at  that  stage,  as  we 
see,  the  court  asks  merely  that  "very  different  question," 
which  Lord  Blackburn  mentions,  whether  the  jury  could 
reasonably  find  the  supplies  to  be  necessaries.  In  Mak- 
arell  v.  Bachellor,^  in  1597,  the  plaintift'  sued  in  debt  for 
supplying  apparel,  and,  upon  a  plea  of  infancy,  replied 
that  the  defendant  "was  one  of  the  gentlemen  of  the  cham- 
ber to  the  Earl  of  Essex,  and  so  it  was  for  his  necessary 
apparel;  and  it  was  thereupon  demurred.  The  court  held 
that  they  were  to  adjudge  Avhat  was  necessary  apparel; 
and  such  suits  .  .  .  cannot  be  necessary  for  an  infant, 
although  he  be  a  gentleman."  In  Ryder  v.  Wombwell,''^ 
in  1868,  where  a  like  question  went  to  the  jury  and  was 
found  for  the  plaintiff,  the  court,  in  granting  a  nonsuit  on 
the  ground  that  there  was  no  evidence  sufficient  to  warrant 
the  verdict,  laid  down  the  general  principle  (1)  that  the 
court  may  always  say,  whether,  prima  facie,  having  regard 
to  "the  usual  and  normal  state  of  things,"  which  is  known 
to  judges  as  well  as  to  juries,  certain  things  "may  be" 
necessaries;  and  (2),  that  if  evidence  is  offered  of  special 
circumstances,  changing  the  usual  state  of  things,  the 
question  for  the  court  is  whether,  upon  the  evidence,  the 
jury  could  reasonably  find  them  necessaries.  On  both 
points,  it  will  be  observed,  the  court  is  simply  holding  the 
jury  and  the  parties  within  the  limits  of  reason. 

Terry  v.  Anderson,  95  U.  S.  628,  633,  634,  per  Waite,  C.  J.  Thayer, 
Origin  and  Scope  of  tlie  American  Doctrine  of  Constitutional  Law  (Little, 
Brown,  &  Co.),  17-22  ;  7  Harv.  Law  Rev.  129. 

1  Cro.  El.  583.  2  l.  R.  4  Ex.  32. 


212  LAW   OF   EVIDENCE. 

3.  In  exercising  their  presiding  function,  the  judges 
have  liad  to  invoke  presumjDtions  and  to  lay  down  rules  of 
presumption.  They  have  thus,  imperceptibly  and  inevi- 
tably, modified  the  jury's  action  in  dealing  with  questions 
of  fact,  and  have  narrowed  the  number  and  range  of  ques- 
tions coming  under  the  jury's  control.  These  presump- 
tions are  sometimes  not  so  much  rules  of  law,  as  formulated 
advice,  indicating  what  judges  recognize  as  permissible  or 
desirable  in  the  jury;  but  often  they  are  strictly  rules  for 
the  decision  of  questions  of  fact.  A  fuller  statement  on 
this  subject  will  be  found  in  a  later  chapter.^  It  is  the 
characteristic  of  a  presumption,  in  dealing  with  a  disputed 
question  of  fact,  to  make  a  'prima  facie  decision  of  the 
question.  In  the  long  history  of  trial  by  jury  this  process 
has  forever  gone  on,  sometimes  as  a  mere  natural,  un- 
observed step  in  the  work  of  a  tribunal  which  regards 
precedent  and  seeks  for  consistency  in  administration, 
sometimes  as  a  sharp  and  short  way  of  bridling  the  jury. 
Such  things  were  done  as  being  mere  administration;  as 
rightly  belonging  to  officials  who  had,  what  the  juries  had 
not,  the  responsibility  of  supervising  the  conduct  of  judi- 
cature, and  of  securing  the  observance,  not  merely  of  the 
rule  of  law,  but  of  the  rule  of  right  reason.  None  the 
less,  however,  are  we  to  notice  that  the  actual  working  of 
this  process  has  transferred  a  great  bulk  of  matter  of  fact 
from  the  jury  to  the  court  by  the  simple  stroke  of  declar- 
ing that  it  shall  no  longer  be  dealt  with  merely  as  mat- 
ter of  fact,  but  shall  be  the  subject  of  rules,  —  rules  of 
practice,  rules  of  good  sense,  prima  facie  rules  of  law, 
even  conclusive  rules  of  law;  even  so  far  do  the  courts 
go  in  this  process.  In  cases  of  prescriptive  rights,  for 
instance,  it  was  perceived  how  hard  it  often  is  to  prove 
them,  prnpter  brevem  ]i,omii)um  vitam,  and  the  judges 
established  the  rule  that  when  once  you  had  given  evidence 
running  back  tlirougli  the  term  of  living  memory,  the  rest 
of  the  long  period  of  legal  memoi-y  might  be  spanned  by  a 

^  Infra,  c.  viii. 


LAW  AND   FACT   IN  JURY   TRIALS.  213 

presumption.  It  was  admitted  to  be  a  qiiestion  of  fact 
and  for  tlie  jury,  whether  the  truth  was  so  or  not;  but 
the  judges  were  not  content  to  leave  it  there;  for  a  grave 
matter  of  policy  was  involved,  and  immense  property  in- 
terests; and  they  perceived  the  very  slender  yjroportions 
of  the  evidence.  "No  doubt,"  said  Mr.  Justice  Black- 
burn,^ "usage  for  the  last  fifty  or  sixty  years  would  be 
some  evidence  of  usage  seven  hundred  years  ago;  but  if 
the  question  is  to  be  considered  as  an  ordinary  question  of 
fact,  I  certainly,  for  one,  would  very  seldom  find  a  verdict 
in  support  of  the  right  as  in  fact  so  ancient."  And  so,  in 
such  cases,  the  judges  instructed  the  jury  that  they 
"ought"  to  find  what  was  thus  presumed;  and,  what  was 
more,  they  enforced  this  duty  on  the  triers  of  fact, 
whether  7iisi 2)rius  judges  or  juries,  by  granting  new  trials 
if  it  was  disregarded. 

4.  Closely  allied  to  the  process  just  dealt  with  is  that  of 
the  definition  of  language.  This  has  a  great  reach.  In 
fixing  the  meaning  of  legal  terms,  the  judges  have  often  as- 
sumed the  determination  of  matters  of  fact.  Such  phrases 
as  "malice,"  "false  pretences,"  "fraud,"  "insanity," 
"reasonable  notice,"  and  the  like,  whether  statutory 
expressions  or  other,  have  required  a  definition.  The 
judges  alone  could  give  it;  and  they  have  sometimes  given 
it,  as  in  the  case  of  insanity,  in  a  manner  to  close  ques- 
tions of  fact  which  might  well  have  been  left  open.^ 

From  the  earliest  times  until  now  much  of  the  law  is 
expressed  in  terms  of  what  is  reasonable.  A  widow  shall 
have  reasonable  dower;  she  may  have  reasonable  estovers; 

1  Bryant  v.  Foot,  L.  R.  2  Q.  B.  p.  172 ;  Jenkins  v.  Harvey,  1  Cr.,  M. 
&  R.  877.  "  Presumptions  do  not  always  proceed  on  a  belief  that  the 
thing  presumed  lias  actually  taken  place.  Grants  are  frequently  pre- 
sumed .  .  .  from  a  principle  of  quieting  the  possession."  Per  Sir  Wni. 
Grant,  M.  R.,  in  Hillary  v.  Waller,  12  Ves.  239,  2.52. 

'-  See  the  observations  of  Mr.  Justice  Doe  in  dissenting  opinions  in  State 
r.  Pike,  49  N.  H.  399,  430,  442,  and  Boardman  v.  Woodman,  47  N.  H.  120, 
146-150  ;  and  the  opinion  of  the  court  (Ladd,  J.)  in  State  v.  Jones,  50  N.  H. 
369. 


214  LAW   OF   EVIDENCE. 

a  party  shall  give  reasonable  notice;  he  shall  act  reason- 
ably, etc.,  etc.  The  pages  of  Glanvill  and  Bracton  are 
as  full  of  this  sort  of  thing  as  those  of  our  latest  volume 
of  reports.  It  is  the  judges  who  have  had  to  define  what 
was  reasonable,  or  else  to  determine  how  it  should  be 
defined;  just  as  they  had  to  say  what  "a  long  time" 
should  mean  in  regard  to  adverse  possession.  Qiiam  longa 
esse  dehent,  says  Bracton,^  non  definitur  a  jure  sed  ex 
justltlarior'um  discretione.  "  Reasonableness  in  these 
cases,"  says  Coke,"^  "belongeth  to  the  knowledge  of  the 
law,  and  therefore  to  be  decided  by  the  justices."  But  in 
exercising  this  function  the  judges  gave  definitions  which 
called  in  the  jury,  by  referring  to  non-legal  standards, 
like  that  of  the  conduct  of  the  prudent  man.  It  is  clear 
that,  even  in  the  old  days,  one  may  find  reasonableness 
passed  on  by  the  secta  and  the  jury.^ 

Of  these  judicial  definitions  our  books  are  full.*  Some- 
times they  begin  by  fixing,  in  particular  cases,  an  outside 
limit  of  what  is  rationally  permissible,  as  in  many  of  the 
cases  about  reasonable  time  and  the  like;  and  then  grow 

1  Fol.  .51  b. 

2  Co.  Lit.  56  b. 

3  Bracton,  315-316  b.  As  to  what  ought  to  be  adjudged  waste  and 
what  not,  in  point  of  quantity,  says  Bracton,  hahet  quaelibet  patria  situm 
modum,  constitutionem  et  consuetucUnem.  What  conformed  to  this  standard 
in  such  a  case  would  be  defined  by  the  court  as  reasonable.  Of  course,  in 
so  far  as  questions  of  reasonableness  relate  to  procedure,  or  other  topics 
wliich  belong  peculiarly  to  the  court,  it  is  easy  to  see  tliat  they  are  for  its 
own  decision.  Infra,  230,  n.  4.  But  the  general  statement  tliat,  in  our 
older  law,  questions  of  reasonableness  were  always  for  the  judges  has 
often  been  acce])ted  witli  too  little  discrimination. 

*  See,  e.  7.,  Twyne's  case  (3  Co.  80  b),  defining  phrases  in  St.  13  Eliz. 
c.  5,  8.  2,  as  to  fraudulent  conveyances;  Calder  v.  Bull,  3  Dall.  386,  and 
Hartuiig  V.  The  People,  22  N.  Y.  95,  defining  the  term  ex  post  facto; 
.McCnilocli  1;.  Maryland,  4  Wheat.  316,  defining  the  words  "  necessary  and 
j)ri)pcr,"  in  tlie  Constitution  of  the  United  States;  Ilnssell  v.  Rus.sell 
I  IH'JT],  A.  C.  395,  defining  the  statutory  word  "  cruelty  ;  "  State  v.  Stevens, 
69  Vt.  411,  defining  tlie  phrase  "  a  set  lino,"  in  a  statute  relating  to  fish- 
ing ;  and  Taylor  v.  Ilorst,  52  Minn.  300,  defining  "  book-account."  There 
is  no  end  to  such  cases,  old  and  now,  in  ('very  jiart  of  the  law. 


LAW   AND  FACT   IN  JURY  TRIALS.  215 

more  precise.  In  this  way  the  legal  rule  as  to  what  is 
reasonable  notice  of  the  dishonor  of  a  bill  of  exchange 
was  established:  juries  were  resisted  by  the  court  when 
they  sought  to  require  notice  within  an  hour,  and,  on  the 
other  hand,  when  they  tried  to  support  it  if  given  within 
fourteen  days,  or  within  three  days,  when  "all  the  parties 
were  within  twenty  minutes'  walk  of  each  other;  "^  and 
so  the  modern  rule  was  fixed,  that  ordinarily  notice  is 
sufficient  if  given  on  the  following  day.  In  the  case  of 
uncertain  fines  in  copyholds,  the  courts  had  previously 
gone  through  a  like  process  of  regulating  excess,  until  at 
last,  not  without  the  aid  of  courts  of  equity,  they  had 
fixed  a  specific  outside  limit. ^  The  process  is  now  going 
on  as  regards  the  question  of  timely  notice  to  the  indorser 
of  a  demand  note.^ 

So  far  as  the  phrases  to  be  defined  occur  in  contracts  or 
similar  writings,  they  become  subject  to  the  rule  already 
mentioned,  that  the  construction  of  writings  is  matter  for 
the  court.  So  far  as  they  are  found  in  statutes  or  our 
American  constitutions,  the  courts  have  control  of  the  defi- 
nition not  merely  on  this  ground,  but  on  another,  namely, 
that  it  is  one  of  those  incidental  questions,  relating  to 
a  law,  which,  being  attracted  to  the  main  one,  are  them- 
selves regarded  as  questions  of  law.*  Courts  do,  indeed, 
when  engaged  in  this  process  of  definition,  sometimes 
take  the  opinion  of  the  jury;  and  their  acceptance  of 
the  verdict,  which  in  reality  may  mean  nothing  more 
than  an  allowance  of  the  jury's  opinion  as  one  that  the 
court  is  willing  to  accept,  is  sometimes  inaccurately 
thought  to  involve  a  ruling  that  the  question  itself  be- 
longs of  right  to  the  jury.     And  again,   a  decision  of   a 

1  Tindal  v.  Brown,  1  T.  R.  pp.  168-9. 

2  Per  Lord  Lougliborough,  Doug.  724,  n. ;  Co.  Lit.  59  b.  Compare 
Maine,  Earhj  Law  and  Custom,  315. 

3  Ames,  Cases  on  Bills  and  Notes,  i.  783  n. ;  Paine  v.  R.  R.  Co.,  118 
U.  S.  152,  160. 

*  Supra,  p.  193. 


216  LAW  OF   EVIDENCE. 

court  in  banc  that  it  is  not  error  in  law  thus  to  take  the 
opinion  of  the  jury  is  supposed  to  mean  that  it  is  the  duty 
of  the  judge  to  do  it.  But  sometimes  this  matter  is  more 
accurately  dealt  with.  In  a  criminal  case  in  Massachu- 
setts, involving  the  question  whether  a  certain  game  was 
a  lottery,  within  the  meaning  of  a  statute,  this  question 
was  left  to  the  jury.^  Four  years  later,  in  a  similar  case, 
the  same  court  said :  "  This  having  been  determined  to  be 
a  lottery  in  Commonwealth  v.  Wright,  it  is  not  necessary 
to  go  on  forever  taking  the  opinion  of  the  jury  in  each  new 
case  that  comes  up.  Whether  or  not  a  definitely  described 
game  falls  within  the  prohibition  of  the  statute  is  a  ques- 
tion of  law.  The  defendant  was  bound  to  know  at  his 
peril.  Whatever  practical  uncertainty  courts  may  have 
felt  upon  a  subject  with  which  they  are  less  well  acquainted 
than  some  others  of  the  community,  in  theory  of  law  there 
is  no  imcertainty,  and  the  sooner  the  question  is  relieved 
from  doubt  the  better."  ^ 

1  Com.  V.  Wright,  137  Mass.  2.50. 

2  Per  Holmes,  J.,  in  Com.  i'.  Sullivan,  14G  Mass.  142, 145.  See  Holmes, 
Common  Law,  123  n.  It  has  an  odd  effect  to  call  tliis  a  question  of  law, 
and  at  the  same  time  speak  of  the  court  feeling  a  practical  uncertainty 
ahout  it  which  leads  them  to  consult  the  jury.  AVhat  is  meant  is  tliat  it  is 
a  question  for  the  court.  Compare  a  recent  le.«s  accurate  English  case, 
Pearce  v.  Lansdowne,  09  Law  Times  Kcp.  31 G  (1893),  wliere  a  potman  at  a 
puljlic  house  had  sued  his  employer  under  an  Employers  Liability  Act,  con- 
tending that  he  was  a  "  workman  "  within  the  meaning  of  the  Act ;  and  not 
"  a  domestic  or  menial  servant,"  who  was  a  personage  excluded  from  that 
category  l)y  the  terms  of  the  statute.  In  one  of  the  county  courts  the  jury 
found  for  the  plaintiff,  suhjoct  to  the  question,  whicli  the  judge  reserved  for 
him.solf,  wliethcr  the  potman  was  "  a  domestic  or  menial  servant."  The  judge 
}:r:iril  evidence  as  to  tlie  natnn^nnd  circumstances  of  the  plaintiff's  employ- 
nieiit.  and  lield  that  lie  was  "  a  domestic  or  menial  servant."  The  evidence 
was  uncontradicted,  and  showed  tliat  tlio  ihities  of  the  jiotman  at  Mie  public 
house  "  were  to  sweep  out  tlie  bar,  to  w.ash  tlie  bar  and  the  ])ewterpots,  to 
dust  round,  to  clean  the  windows,  to  put  fresh  sawdust  down,  and  to  take 
beer  out  to  customers.  He  did  not  sell  anything.  He  slept  at  his  own 
house,  at  some  distance  fnun  I  lie  ]iiililic  lioiise.  and  returned  home  three 
times  a  day  for  meals."  Tiie  |il:iinlilT  .ippealeil,  ;iii(l  in  the  Queen's  Tiench 
Division  the.  ajipi'al  was  dismissed.      I'nl  the  court  (\\'illianis  and  Collins, 


LAW   AND   FACT   IN   JURY  TRIALS.  217 

5.  The  rules  of  practice  and  the  forms  of  pleading  and 
procedure  were  under  the  control  of  the  judges. 

(cf)  The  judges  often  compelled  special  verdicts.  It 
was  the  old  law  that  a  jury,  if  it  chose  to  run  the  risk 
of  a  mistake,  and  so  of  the  punishment  by  attaint,  always 
might   find   a  general   verdict.^     But   the   judges  exerted 

JJ.)  found  much  difficulty  in  dealing  with  the  case.  They  declared  that 
the  judge  below  had  usurped  the  place  of  the  jury,  and  that  tlie  strictly 
proper  course  to  be  observed  at  the  present  stage  would  be  that  of  send- 
ing the  case  back  to  be  given  to  a  jury  ;  but  that,  as  both  sides  wished  the 
matter  to  be  finally  disposed  of  now,  the  court  would,  under  an  established 
but  irregular  rule  of  practice  in  dealing  with  motions  for  a  new  trial,  take 
on  itself  the  jury's  function  and  declare  that  the  judge  below  had  reached 
a  right  result.  Mr.  Justice  Williams,  who  gave  the  principal  opinion  in 
the  case,  said :  "  I  do  not  quite  know  why  the  functions  of  the  judge  and 
those  of  the  jury  are  not  kept  properly  separate  in  dealing  with  these  Acts 
of  Parliament,  but  there  seems  to  be  a  sort  of  notion  that  if  the  facts  of 
the  particular  case  are  admitted,  the  result  is  that  the  functions  of  the 
judge  and  the  jury  are  thereby  altered,  that  the  jury  cease  to  be  the  tribunal 
which  is  to  draw  the  necessary  inferences  of  fact,  and  that  it  becomes  the 
duty  of  the  judge  to  draw  them.  ...  I  do  not  believe  that  because  the 
facts  are  admitted,  the  functions  of  the  jury  as  to  drawing  inferences  from 
them  are  altered  at  all.  .  .  .  There  is  no  dispute  here  as  to  what  were  the 
duties  performed  by  the  plaintiff  or  as  to  the  circumstances  under  which 
he  performed  them."  Then  the  judge  quotes  as  authority  for  what  he  is 
saying  the  language  of  Lord  Justice  Bowen  in  a  case  of  negligence,  not 
adverting,  iu  doing  so,  to  a  real  difference  between  such  a  case  and  one 
where  the  court  is  construing  a  statute.  In  Davey  v.  Lond.  &  S.  W.  Ry. 
Co.,  12  Q.  B.  D  70,  76,  the  Lord  Justice  had  said  :  "  It  is  not  because  facts 
are  admitted  that  it  is  therefore  for  the  judge  to  say  what  the  decision  upon 
them  should  be.  If  the  facts  which  are  admitted  are  capable  of  two  equally 
possible  views  which  reasonable  people  may  take,  and  one  of  them  is  more 
consistent  with  the  case  for  one  party  than  for  the  other,  it  is  the  duty  of 
the  judge  to  let  the  jury  decide  between  such  conflicting  views."  After 
citing  this,  Williams,  J.,  proceeds  :  "  It  is  impossible  to  state  the  law  with 
more  accuracy  and  clearness ;  and,  to  apply  it  here,  I  say  that  no  one  can 
doubt  that  on  the  facts  it  is  possible  that  reasonable  persons  may  take  dif- 
ferent views  as  to  whether  the  plaintiff  was  .  .  .  '  a  domestic  or  menial 
servant.'  Under  these  circumstances  I  wish  to  say,  as  emphatically  as  T 
can,  that  it  seems  to  me  here  that  the  county  court  judge  took  upon  him- 
self the  functions  of  the  jury  without  any  occasion  for  so  doing." 
1  Co.  Lit.  228  a ;  2d  Inst.  425  ;  Dowmau's  case,  9  Co.  7  b,  12  b. 


218  LAW   OF   EVIDENCE. 

pressure  to  secure  special  verdicts;  sometimes  they  ordered 
them,  and  enforced  the  instruction  by  threats,  by  punishing 
the  jury,  and  by  giving  a  new  trial. ^  As  matter  of  history, 
we  know  that  the  jury,  on  the  whole,  successfully  stood  out 
against  these  attempts ;  and  that  in  most  cases  their  right 
was  acknowledged.^  But  now  it  is  remarkable  how  judges 
and  legislatures  in  this  country  are  unconsciously  travel- 
ling back  towards  the  old  result  of  controlling  the  jury, 
by  requiring  special  verdicts  and  answers  to  specific 
questions.^  Logic  and  neatness  of  legal  theory  have 
always  called  loud,  at  least  in  recent  centuries,  for  special 
verdicts,  so  that  the  true  significance  of  ascertained  facts 
might  be  ascertained  and  declared  by  the  one  tribunal 
fitted  to  do  this  finally  and  with  authority.  But  consider- 
ations of  policy  have  called  louder  for  leaving  to  the  jury 
a  freer  hand.  The  working  out  of  the  jury  system  has 
never  been  shaped  merely  by  legal  or  theoretical  consider- 
ations. That  body  always  represented  the  people,  and 
came  to  stand  as  the  guardian  of  their  liberties;  so  that 
whether  the  court  or  the  jury  should  decide  a  point  could 
not  be  settled  on  merely  legal  grounds;  it  was  a  ques- 
tion deeply  tinged  with  political  considerations.  While 
it  would  always  have  been  desirable,  from  a  legal  point 
of  view,   to   require    from  the   jury  special  verdicts  and 

1  Chichester's  ease,  Aleyn,  12  (1644) ;  Gay  v.  Cross,  7  Mod.  37  (1702) ; 
R.  V.  BewiUey,  1  Peere  Willi.ams,  207  (1712).  Compare  Baker's  case,  5 
Co.  104  (IGOO). 

2  Mayor  of  Devizes  v.  Clarke,  3  A.  &  E.  506. 

8  See  Mr.  W.  W.  Thornton's  article  in  20  Am.  Law  Rev.  366,  on 
"  Special  Interrogatories  to  Juries."  At  pp.  381  and  382  the  writer  says  : 
"The  practice  of  submitting  a  vast  number  of  interrogatories  to  a  jury  is 
frcfinoritly  criticised  by  the  courts  ;  nevertheless  tl;e  practice  continues, 
anil  in  fiict  is  growing  worse.  .  .  .  All  the  statutes  provide  that  if  [the 
answers  to]  the  speciivl  interrogatories  are  inconsistent  with  the  general 
venlict,  they  shall  prevail  over  tlic  latter."  See  Maceman  v.  Equitable  Co., 
72  N.  W.  Rej).  Ill  (Minn.,July,  1897).  In  Atch,  R.  R.  Co.  v.  Morgan,  22 
I'ac.  Rep.  '.)!).')  (Jan.  1890,  Kansas),  seventy-eight  questions  were  put 
to  the  jury,  filling  nearly  three  octavo  ])agcs  of  fine  print  and  double 
columns. 


LAW  AND   FACT   IN  JURY  TRIALS.  219 

answers  to  special  questions,  that  course  would  have  given 
more  power  to  the  king  and  less  to  the  people.  It  is 
one  of  the  eccentricities  of  legal  history  that  we,  in  this 
country,  while  exalting  in  some  ways  the  relative  func- 
tion of  the  jury  far  beyond  all  Englisli  precedent,  are  yet, 
in  some  parts  of  the  country,  greatly  cutting  down  their 
powers  in  the  particular  here  referred  to.^  Doubtless  the 
judges  at  common  law  have  always  exercised  a  limited 
power  of  questioning  the  jury  about  their  verdicts.  But 
the  general,  common-law  right  of  the  jury  to  refuse  to 
answer  such  questions  and  to  give  a  short,  general  verdict 
has  been  acknowledged.  It  was  conspicuously  recognized 
in  a  recent  English  case,  where,  in  a  criminal  trial  of  great 
importance,  for  a  violation  of  the  Foreign  Enlistment  Act, 
such  questions  were  put  to  them  and  answered.  I  quote 
from  the  account  of  a  competent  observer  who  was  present 
at  the  trial :  ^  "  Then  .  ,  .  came  the  charge  of  the  court 
by  the  Lord  Chief  Justice,  at  the  conclusion  of  which  he 
propounded  to  the  jury  seven  questions.  .  .  .  Sir  Edward 
Clarke  [for  the  defence]  endeavored  to  interpose  an  objec- 
tion to  the  propounding  of  these  questions,  but  he  was 
silenced  in  the  most  peremptory  manner  by  the  Lord  Chief 
Justice,  who  said  that  he  would  permit  no  interruption  at 
that  stage.  The  jury  were  then  told  that  they  were  only 
requested  by  the  court  to  answer  the  questions ;  they  could 
not  be  compelled  to  answer  them.  They  could,  if  they 
chose,  bring  in  a  general  verdict  of  guilty  or  not  guilty ; 
but  in  refusing  to  answer  the  questions  they  would  be 
assuming  a  grave  responsibility,  inasmuch  as  que'Stions 
of  law  were  involved," 

(b)  Again,  under  this  general  power  of  shaping  the 
rules  and  forms  of  pleading  and  procedure,  the  courts,  as 
we  have  noticed  already,^  used  to  enable  a  imrty  to  spread 

1  Supra,  188  n.,  218  n. 

2  Reg.  V.  Jameson  et  al.,  6  Yale  Law  Journal,  32,  36,  an  article  by 
Professor  Wurts,  of  Yale  University. 

3  Supra,  114-119. 


220  LAW   OF   EVIDENCE. 

upon  the  record  the  particulars,  and  even  the  evidence,  of 
his  case,  with  a  view  to  a  better  control  of  the  jury.  This 
gave  much  into  the  hands  of  the  judges,  on  a  demurrer, 
and  on  a  motion  in  arrest  of  judgment;  and  sometimes  it 
greatly  enlarged  their  power  at  tlie  trial.  The  operation 
of  this  may  be  illustrated  by  the  former  law  of  libel. 
Chief  Justice  Shaw,  in  explaining  the  old  controversy  on 
that  subject,  in  an  important  case,^  after  stating  the  rules 
of  pleading,  says:  "The  theory  of  those  judges  who  held 
that  the  jury  were  only  to  find  the  fact  of  publication  and 
the  truth  of  the  averments,  colloquia,  and  innuendoes,  was 
this :  that  when  the  words  of  the  alleged  libel  are  exactly 
copied,  and  all  the  circumstances  and  incidents  which  can 
affect  their  meaning  are  stated  on  the  record,  inasmuch  as 
the  construction  and  interpretation  of  language,  when  thus 
explained,  is  for  the  court,  the  question  of  the  legal  char- 
acter of  such  libel  .  .  .  would  be  placed  on  the  record,  and 
therefore,  as  a  question  of  law,  would  be  open,  after  ver- 
dict, on  a  motion  in  arrest  of  judgment."  The  fierce 
struggle  tliat  went  on  over  this  question  and  ended  in  the 
statute,  recognizing  the  jury's  right,  as  in  other  cases,  so 
in  cases  of  criminal  libel,  to  give  a  general  verdict,-  illus- 
trates the  immense  practical  importance  of  the  question 
who  should  have  the  opportunity  to  apply  the  law  to  the 
fact.  The  history  of  the  jury  is  full  of  such  illustrations. 
To  leave  to  the  jury,  on  the  one  hand,  what  is  unhappily 
called  a  mixed  question  of  law  and  fact,  with  the  proper 
alternative  instructions  as  to  what  the  law  is  upon  one  or 
another  supposition  of  fact  ;  and,  on  the  other  hand,  to 
liave  such  a  question  remain  with  the  court  after  the  jury 
have  reported  upon  the  specific  questions  of  fact,  —  are 
two  exceedingly  different  things.  Within  permissible 
limits  there  is  generally  a  good  range  of  choice  in  matters 
of  inteiidiii(!iit  and  inference;  it  makes  a  great  difference 

1   Toiii.  V.  AntliPS,  5  (ir.iy,  ISf).  214. 

-  St.  :V2  Geo.  III.  c.  60.     Capital  ami  Counties  Bauk  v.  Ilenty,  7  App. 
Caa.  741;  s.c.  31  W.  11.  1.'57. 


LAW  AND   FACT   IX  JURY  TRIALS.  221 

who  is  to  make  the  choice,  even  when  these  just  limits 
are  observed;  and  since  mistakes  are  possible,  and  even 
wilful  error,  the  reasons  for  wishing  for  one  of  these 
tribunals  rather  than  the  other   are  greatly  increased. 

(c)  Resulting,  also,  from  this  general  control  of  the 
courts  over  the  procedure,  is  a  peculiar  doctrine  in  actions 
for  malicious  prosecution,  and  for  false  imprisonment.  The 
former  of  these  is  the  modern  representative  of  the  old 
action  of  conspiracy.  At  an  earlier  page  we  have  seen  an 
instance,  in  conspiracy,  of  the  Avay  in  which  the  defendant 
was  allowed  to  set  forth  his  matter  of  defence  on  the 
record,  out  of  regard  to  the  uncertainties  of  the  jury.-' 
The  same  thing  is  seen  about  a  century  later, ^  where 
Gawdy,  J.,  doubted  whether  this  sort  of  thing  were  a  plea, 
"because  it  amounts  to  a  non  culjtahilis.  .  .  .  But  the 
other  justices  held  that  it  was  a  good  plea,  ^^er  doubt  del 
lay  gents.''''  Besides  the  old  "formed  action"  for  con- 
spiracy, there  appeared  early  the  action  on  the  case  in  the 
nature  of  conspiracy;  in  which,  however,  a  real  conspiracy 
was  not  necessary  to  be  proved  even  when  alleged.*  There 
was  always  great  anxiety  on  the  part  of  the  court  lest  this 
action  should  be  abused.  It  was  said  that  while  it  was 
true  that  when  two  conspire  maliciously  to  indict  and 
there  is  an  acquittal,  the  action  lies;  yet  it  ought  not  to 
be  so  where  only  one  prosecutes,  —  "  for  then  every  felon 
that  is  acquitted  will  sue  an  action  against  the  party;"* 
and  at  any  rate,  if  the  action  does  lie,  it  can  only  be  where 
the  defendant  had  no  probable  cause;  and  the  defendant,, 
on  his  side,  should  plead  his  reasons.^ 

1  Suj)ra,  118  ;  a  case  of  1504. 

2  Paiu  V.  Rochester,  Cro.  Eliz.  871  (1601-2).  See  also  Chambers  y. 
Taylor,  ib.  900. 

3  bkinuer  (•.  Gunton,  Saunders,  228,  230  a,  and  per  Holt,  C.  J.,  in  Rob- 
erts V.  Savill,  5  Mod.  405,  407  (1698)  :  "  For  really  it  is  an  action  on  tiie 
case,  and  no  action  of  conspiracy." 

*  Shuts  and  Gawdy,  JJ.,  in  Knight  v.  German,  Cro.  Eliz.  70  (1587). 
5  s.  c.  Cro.  Eliz.  134  (1589).     In  this  case,  an  action  for  maliciously 
causing  the  plaintiff  to  be  indicted  for  felony,  the  defendant  had  pleaded 


222  LAAV   OF   EVIDENCE. 

Afterwards  the  scope  of  the  action  was  enlarged  so  as 
to  include  a  prosecution  for  a  "trespass,"  i.e.,  a  misde- 
meanoi-,  and  also  the  bringing  of  a  civil  action;  and  the 
settled  form  of  pleading  became  that  of  the  plaintiff 
specifically  alleging  malice  and  want  of  reasonable  and 
probable  cause,  and  the  defendant  pleading  the  general 
issue. ^  Ceasing  to  enter  the  facts  on  the  record  removed 
from  the  court  the  opportunity  to  determine,  on  demurrer 
or  motion  in  arrest  of  judgment,  whether  these  facts, 
assuming  them  to  be  true,  constituted  reasonable  and  prob- 
able cause.  But  otherwise,  it  left  the  respective  duties  of 
court  and  jury  as  they  were  before;  it  did  not,  in  theory, 
touch  the  question  of  who  is  to  pass  upon  the  effect  of  the 
facts  when  they  are  not  assumed  or  admitted  to  be  true. 
To  say  that  such  and  such  a  thing  will  not  support  a  jury's 
verdict,  and  such  and  such  another  will,  is  only  to  speak  of 
those  bounds  of  reason  within  which  the  judge  of  fact 
must  always  keep;  it  sets  up  these  limits  on  one  side  and 
the  other,  but  so  long  as  they  are  observed  it  says  nothing 
as  to  who  shall  constitute  this  tribunal,  whether  jury  or 
court.  But  it  was  easy  to  be  inexact  about  this.  To-day 
and  always  courts  have  tended  to  be  thus  inexact,  and  in 
speaking  of  their  own  function,  namely,  that  of  deciding 
whether  a  certain  conclusion   is   permissible,    whether   it 

the  general  issue.  Error  was  brouglit  on  a  judgment  for  the  plaintiff. 
"  Gawdy,  Justice.  If  the  defendant  did  it  upon  good  presumptions,  he 
ought  to  ])lc!ad  tlicm  ;  as  that  he  found  them  in  the  house,  etc.,  or  the  like 
cause  (^f  susi)ici()ii ;  but  no  such  thing  is  pleaded.  Otherwise  every  one 
shall  he  in  danger  of  liis  life  l)y  such  practices.  Wkay,  Chief  Justice, 
agreed." 

1  Atwood  ;;.  Monger,  Style,  378  (16.').'));  Roberts  v.  Savill,  5  Mod.  394, 
40."),  410  (1098);  s.  c.  1  Salk.  13  ;  Jones  v.  Gwynn,  10  Mod.  214  (1713);  s.C. 
(Jilliert,  18.");  Johnstone  v.  Sutton,  1  T.  11.  493,  49.5,  544  (1786);  Cotton  r. 
Krowne,  3  A.  &  E.  312  (183.5);  Tanton  r.  Williams,  2  Q.  li.  169  (1841). 
It  is  to  bo  reni.arketl,  however,  tiiat  in  the  action  of  trespa.ss  for  false  im- 
prisonment, the  ilnfcndant  still  continued  to  plead  in  full  tlie  facts  of  his 
justificatiftn.  H.nynes  i\  IJnwslcr,  2  (J.  B.  375  (1841);  Spencer  v.  Anness, 
32  X.  J.  Law,  100  (iwcr,):  I'.nms  r.  Krbcn,  40  N.  Y.  403  (1809).  Seethe 
CKiiiplainls  (if  Lord  I  (ciniiaii  in  I'ayncs  v.  lircwsler,  iihi  supra. 


LAW  AND  FACT  IN  JURY  TRIALS.  223 

can  he  reached  by  a  jury,  —  not  merely  to  call  it  a  question 
of  law  (which  often  it  is  not),  but  loosely  to  identify  it 
with  the  jury's  question.  This  subtle  error  has  been  and 
now  is  one  of  the  commonest  in  our  books. ^  Whether  it 
came  about  by  way  of  this  confusion  of  two  different 
questions,  or  however  it  happened,  it  became  one  of  the 
settled  phrases  of  the  courts  to  say,  not  merely  that  the 
fixing  of  these  outside  limits  is  a  question  of  law  for 
the  court,  but  to  say  also,  broadly,  that  determining 
reasonable  and  probable  cause  itself  is  a  question  of  law 

1  Supra,  209.  To  take  an  illustration  from  two  cases  in  the  same 
court.  In  Carroll  v.  The  Interstate  Rapid  Transit  Co.,  107  Mo.  653,  660 
(1891),  the  question  arose  on  the  defendant's  demurrer  upon  the  evi- 
dence. Tlie  opinion  is  expressed  thus :  "  In  the  present  action  the  ques- 
tion must  be  determined  whether  plaintiff  exercised  ordinary  care  for  his 
own  safety ;  or  to  put  the  statement  into  a  somewhat  more  practical  form, 
whether  his  conduct,  in  the  opinion  of  the  court,  was  such  as  a  person  of 
ordinary  prudence  and  caution,  in  the  same  circumstances,  would  have 
exhibited,  according  to  the  usual  and  general  experience  of  men."  It  is 
obvious  from  wiiat  follows  in  the  opinion  that  the  court  did  not  mean  to 
take  to  itself  the  jury's  question,  but  only  to  ask  what  conclusions  were 
permissible,  as  a  matter  of  sound  reason.  In  a  later  case  (Keowu  v.  St.  Louis 
R.  Co.,  41  S.  W.  Kep.  926,  July,  1897),  the  same  distinguished  judge  in  a 
similar  case  says  :  "  The  next  question  is  whether  or  not  Willum  was  guilty 
of  a  breach  of  duty  ...  in  starting  the  car.  .  .  .  Was  he,  then,  bound  to 
anticipate  Keown's  presence  there,  or  to  look  towards  the  rear  of  the  car  for 
him  before  stai'ting  the  car?  It  nmst  be  confessed  that  this  query  has  given 
us  some  trouble  to  answer,  and  we  express  our  conclusion  on  it  with  some 
misgivings.  .  .  .  Conceding  tlie  full  force  of  ])laintiff 's  evidence  it  does  not 
tend  to  prove  the  essential  fact.  .  .  .  Whether  submitted  testimony  tends  to 
establish  negligence  is  a  question  of  law,"  etc.  A  motion  for  a  rehearing 
was  made,  and  counsel  pressed  a  point  as  to  the  Court's  misgivings,  and 
urged  that  these  showed  that  the  case  was  one  about  which  fair-minded  men 
might  differ,  and  so  was  for  the  jury.  But  the  court  (ib.  929)  adhered  to 
its  decision,  saying  that  its  "  misgivings  "  related  only  to  its  own  question 
and  not  to  the  jury's :  "  The  question  whether  or  not,  in  any  case,  given 
testimony  tends  to  prove  neglig^ce,  is  a  question  for  the  courts.  And 
though  it  may  sometimes  be  difficult  of  solution,  the  court  is  bound  to  solve 
the  difficulty  as  best  it  can,"  etc.  I  use  these  illustrations  because  the 
language,  in  both  cases,  is  that  of  one  of  the  soundest  and  most  accurate 
of  American  judges. 


224  LAW  OF   EVIDENCE. 

for   the   court.     In   the  case  of   1504,  above   referred  to, 
Fiueux,  C.    J.,    says  of  the  facts  allowed  to  be  pleaded 
there:  "He  shall  not  be  driven  to  the  general  issue,  for  it 
is  special  matter,  and  triable  by  the  justices.^     In  1785, 
Buller,  J.,  declared  that  what  is  reasonable  or   probable 
cause    is   matter   of  law."^     And   this   was  repeated  and 
elaborately  laid   down   in   a   leading  English  case  in  the 
Exchequer  Chamber  in  1841.^     And  the  same  thing  often, 
as  in  a  Massachusetts  case,  in  1832:  "What  facts  and  cir- 
cumstances amount  to  probable  cause  is  a  pure  question  of 
law.     Whether  they  exist  or  not,  in  any  particular  case,  is 
a  question   of  fact.     The   former   is   exclusively  for  the 
court;  the  latter  for   the   jury."*     No   one,  indeed,    ever 
treated  it  as  a  question  for  the  court  in  the  full  sense  in 
which  a  preliminary  question   as  to  the  admissibility  of 
evidence  is  for  the  court,  namely,  in  the  sense  that  all  the 
facts  necessary  to  determine  it  must  be  passed  on  by  the 
court.  ^     As  in  the  case  of  the  interpretation  of  writings, 
where  the  extrinsic  facts  are  to  be  ascertained  by  the  jury, 
so  here,  it  is  common  to  say  that  the  facts  are  for  the  jury, 
and  the  conclusion  upon  those  facts  is  for  the  court.    Thus 
in  a  great  case   in   1786  the  Chief  Justices  Lord  Mans- 
field and  Loughborough  said:  "The  question  of  probable 
cause  is  a  mixed   proposition  of  law  and  fact.     Whether 
the  circumstances  .   .  .  are  true  and  existed,  is  a  matter  of 
fact;  but  wlietlier,  supposing  them  true,  they  amount  to  a 
probable   cause,   is   a    question  of   law."®    Baptizing  the 
question  of  reasonable  and  probable  cause  with  this  name, 
as  a  "]iiix<'d  question  of  law  and  fact,"  common  and  almost 
universal  as  it  is,  has  only  adtled  to  the  confusion.     All 

1  Siti>m,  119. 

•^  Caiidcll  )'.  T.oikIom.  cited  l)y  coniiHol  in  1  T.  R.  520.     Infra,  226. 

8  raiitoii  V.  Williams,  2  Q.  H.  169,  193. 

♦  Stoiio  »'.  Crockfir.  24  Pick.  81,  m. 

^  Harllctf  V.  Smitli,  II  M.  &  W.  48.'5  ;  Gorton  v.  Iladscll,  9  Cn.sli.  511. 

'■'  .luliiiHiono  I-.  Sutton,  1  T.  1{.  49.'?,  545.  And  bo  very  commonly,  as  in 
Miinns  r.  Diipont,  :(  Wanli.  ('.  C  .'?I  (1811);  llninpliries  v.  Parker,  52  Me. 
.500  (18G4);  A.hU  r.  Marlow,  2.'!  Oiiio  St.  119  (1851). 


LAW  AND  FACT  IN  JURY  TRIALS.  225 

questions  of  fact,  for  a  jury  or  for  a  court,  are  mixed  ques- 
tions of  law  and  fact  ;  for  they  must  be  decided  with 
reference  to  all  relevant  rules  of  law  ;  and  whether  there  be 
any  such  rule,  and  what  it  is,  must  be  determined  by  the 
court.  Kow  since  this  mixture  of  law  and  fact  is  thus 
common  to  a  variety  of  different  situations,  it  is  an  unin- 
structive  circumstance  to  lean  upon  when  one  seeks  for 
guidance  in  discriminating  these  situations.^ 

The  place  of  this  question  of  reasonable  and  probable 
cause  might  be  truly  intimated,  by  a  turn  of  phrase  bor- 
rowed from  the  familiar  expression  just  commented  upon, 
—  if  one  should  call  it  a  rnlxed  question  of  fact;  "  mixed  " 
in  the  sense  that  the  two  tribunals  are  blended  in  deciding 
it,  that  the  issue  of  fact  is  divided  between  them.  We 
must  observe  that  this  is  not  what  happens  in  ordinary 
questions  of  reasonable  conduct  and  negligence ;  these  now 
go  to  the  jury  as  being  mere  questions  of  fact;  to  be  deter- 
mined, indeed,  according  to  such  rules  and  definitions  of 
law  as  the  judge  lays  down.  But  in  such  cases  it  is  the 
jury  that  applies  these  rules  of  law  to  the  facts,  whenever 
the  facts  are  disputed,  or  when,  although  "the  facts  are 
agreed,"  as  we  say,  yet  the  inference  from  them,  in  any 
point  of  fact,  is  disputable.  These  questions  of  negligence, 
also,  are  continually  styled  mixed  questions  of  law  and 
fact.  But  in  regard  to  the  question  of  reasonable  and  prob- 
able cause  as  it  arises  in  malicious  prosecution  and  false 
imprisonment,  as  well  as  in  regard  to  that  of  the  true 
meaning  of  writings,  it  is  the  established  doctrine  that 
while  the  jury  are  to  find  the  specific  facts  from  which  the 
conclusion  is  to  be  drawn,  yet,  these  being  ascertained,  the 

1  See  the  valuable  remarks  of  Duer,  J.,  in  Bulkeley  v.  Smith,  2  Dner, 
261.  He  truly  says  tliat  this  phrase  is  a  deceptive  one,  either  M-liolly  un- 
meaning, or  intelligible  and  true  only  in  a  sense  equally  applicable  to  every 
question  of  law  that  a  judge  in  the  prosecution  of  a  trial  can  be  required 
to  determine.  Misled  by  this  expression,  he  says,  judges  often  content 
themselves  with  defining  reasonable  and  probable  cause,  and  then  leaving 
everything  to  the  jury.  This,  of  course,  is  dealing  with  the  matter  just  as 
negligence  is  now  ordinarily  dealt  with.     See  infra,  231  u.,  2.50. 

1.5 


226  LAW   OF   EVIDENCE. 

conclusion  of  reasonable  and  probable  cause  or  the  absence 
of  it  is  to  be  ascertained  only  by  the  judge. 

Call  it  what  you  will,  the  question  itself  is  exactly  the 
same  which  arises  in  all  cases  of  negligence,  —  has  one 
conformed  to  the  standard  of  the  prudent  and  reasonable 
man?^  Such  questions,  a  hundred  years  ago,  were  often 
called  questions  of  law,  and  the  method  then  and  now 
applied  to  reasonable  and  probable  cause  in  malicious 
prosecution  was  also  applied  to  other  like  questions,  as 
ordinary  questions  of  negligence.  The  case  of  Tindal  v. 
Brown  '^  was  decided  only  six  months  before  the  decision  of 
the  Exchequer  Chamber  in  Sutton  v.  Johnstone.^  In  the 
former  case  Lord  Mansfield  and  the  other  judges  said  that 
reasonableness  of  time  when  the  general  facts  were  ascer- 
tained was  a  question  of  law  for  the  court.  In  the  latter, 
they  said  the  same  of  reasonable  and  probable  cause.  But 
in  modern  times  this  same  general  question,  of  what  is 
reasonable  notice,  arising  in  Tindal  v.  Brown,  — like  ques- 
tions of  reasonable  conduct  in  general,  is  clearly  recog- 
nized as  a  question  of  fact  for  a  jury.  Doubtless  the 
particular  question  there  discussed  has  become  the  subject 
of  a  judicially  legislated  rule  of  law.  But  only  ten  years 
after  the  decision  of  the  King's  Bench  in  Tindal  v.  Brown, 
Lord  Kenyon,  in  granting  a  new  trial,  said  of  the  general 
question:  "I  cannot  conceive  how  this  can  be  a  matter  of 
law.  I  can  understand  that  the  law  should  require  that 
due  diligence  shall  be  used,  but  that  it  should  be  laid 
down  that  the  notice  must  be  given  that  day  or  the  next, 
or  at  any  precise  time,  under  whatever  circumstances,  is, 
I  own,  beyond  my  comprehension."  *  And  four  years  later, 
in  refusing  a  new  trial,  the  same  judge  said,  after  object- 

1  Rcf.  adcfihitioii  which  is  very  widi'ly  iipplicil  in  this  country  in  Mnnns 
V.  7)ii])<)nt,  .■{  Wiish.  C.  C.  .'U  (IHH);  coniiKiro  Iluniphries  y.  rurkcr,  52 
Maine,  .'iOO. 

2  1  T.  R.  167  (M:vy,  1786).    S,ipr<i,  21.5. 
8  1  T.  R.  403,  544  (Nov.  I7S6). 

*  Hilton  V.  Slicpanl,  cited  in  noL(^  to  0  East,  3. 


LAW  AND   FACT  IN  JURY   TRIALS.  227 

ing  to  the  rule  imputed  to  Tindal  v.  Brown,  "Whether 
reasonable  notice  have  or  have  not  been  given,  must  de- 
pend on  the  circumstances  of  the  case,  of  which  the  jury 
will  judge."  ^  But  now,  whatever  be  the  exact  shape  of 
any  specific  question  of  this  sort,  there  is  no  doubt  about 
the  matter  of  reasonableness  in  general.  "  The  questions 
raised  at  the  trial  were  questions  of  fact,  and  of  fact 
only,"  said  Lord  O'Hagan  in  an  important  accident  case, 
involving  questions  of  negligence.^    The  characteristic  of 

'  Hopes  w.  Alder,  cited  in  note  to  6  East,  3.  But  compare  Wyman  v. 
Adams,  12  Cush.  210. 

2  Dublin,  etc.  Ry.  Co.  v.  Slattery,  3  App.  Cas.  1155,  1181  (1878).  In  a 
similar  case  in  the  Supreme  Court  of  the  United  States,  Fuller,  C.  J., 
for  the  court,  quoted  with  approval  the  language  of  an  earlier  case  before 
the  same  tribune :  "  The  policy  of  the  law  has  relegated  the  determination 
of  such  questions  to  the  jurj^  under  proper  instructions  from  the  court.  .  .  . 
When  a  given  state  of  facts  is  such  that  reasonable  men  may  fairly  differ 
upon  the  question  whether  there  was  negligence  or  not,  the  determination 
of  the  matter  is  for  the  jury."  Bait.  &  0.  R.  R.  Co.  v.  Griffiths,  159  U.  S. 
603  (1895).  Compare  Holmes,  J ,  in  Doyle  v.  B.  &  A.  R.  R.  Co.,  145 
Mass.  386.  In  Phipps  v.  Lond.  &  N.  W.  Ry.  Co.  [1892],  2  Q.  B.  229, 
on  an  appeal  from  the  Railway  Commissioners,  under  a  statute  forbid- 
ding a  railway  company  to  give  "any  undue  or  unreasonable  preference 
or  advantage  to  or  in  favor  of  any  particular  person  or  company,"  etc.,  etc., 
and  limiting  the  right  of  ap])eal  to  questions  of  law,  the  court  declined 
to  consider  the  question  of  reasonableness,  because  it  was  merely  a  ques- 
tion of  fact.  "  It  cannot  lie  doubted,"  said  Lord  Herschell,  "  that  whether 
in  particular  instances  there  has  been  an  undue  or  unreasonable  prejudice  is 
a  question  of  fact.  ...  I  should  say  tliat  the  decision  must  be  arrived  at 
broadly  and  fairly  .  .  .  looking  at  all  the  circumstances  which  are  proper 
to  be  looked  at ;  .  .  .  keeping  in  view  all  the  circumstances  which  may 
legitimately  be  taken  into  consideration,  then  it  becomes  a  mere  question 
of  fact."  The  only  question  of  law  in  this  case  was  whether,  on  a  com- 
plaint of  undue  preference  to  a  particular  trader,  the  commissioners  could 
rightly  take  into  account  the  circumstance  that  this  party  had  access  to  a 
competing  route ;  and  it  was  held  that  they  could.  Under  the  Interstate 
Commerce  Act  of  the  United  States  there  is  no  such  restriction  on  the 
right  of  appeal,  and  the  Supreme  Court  of  the  United  States,  while  enter- 
taining jurisdiction  on  both  the  questions  alluded  to  in  the  English  de- 
cision above  quoted,  yet  distinctly  agrees  with  it,  and  relies  upon  its 
authority  in  adopting  both  of  its  conclusions  above  mentioned  :  "  It  cannot 
be  doubted,"  says  Shiras,  J.,  for  the  court,  "  that  whether  in  particular 


228  LAW  OF  EVIDENCE. 

4 

all  such  questions  is  the  same.  The  only  rule  of  law 
is  one  which  appeals  to  an  outside  standard,  that  of 
general  experience;  and  the  application  of  it,  by  what- 
ever tribunal  made,  calls  for  a  preliminary  determination 
of  something  for  which  there  is  no  legal  test,  —  a  matter 
of  fact,  and  not  a  matter  of  law,  —  namely,  the  behavior, 
in  a  supposed  case,  of  the  prudent  man.  If  the  settling 
of  sucli  a  question  be  matter  of  fact  in  ordinary  cases  of 
negligence,  it  is  equally  so  in  cases  of  malicious  prosecu- 
tion and  false  imprisonment;  for  saying  this,  notwith- 
standing the  careless  phraseology  of  our  books,  there  is 
abundant  authority.  See,  for  example,  the  weighty 
seriati.vi  opinions  of  the  law  Lords  in  a  case  of  false 
imprisonment,  in  1870.^  Lord  Chelmsford  said:  "My 
Lords,  there  can  be  no  doubt  since  the  case  of  Panton  v. 
Williams,^  in  which  the  question  was  solemnly  decided  in 
the  Exchequer  Chamber,  that  what  is  reasonable  and 
probable  cause  in  au  action  for  malicious  prosecution,  or 
for  false  imprisonment,  is  to  be  determined  by  the  judge. 
In  what  other  sense  it  is  properly  called  a  question  of  law 
I  am  at  a  loss  to  understand,  No  definite  rule  can  be  laid 
down  for  the  exercise  of  the  judge's  judgment.  Each  case 
must  depend  upon  its  own  circumstances,  and  the  result  is 
a  conclusion  drawn  by  each  judge  for  himself,  whether  the 
facts  found  by  the  jury,  in  his  opinion,  constitute  a  defence 
to  the  action.  The  verdict  in  cases  of  this  description, 
therefore,  is  only  nominally  the  verdict  of  a  jviry."  In 
the  same  case  Lord  Westbury  added:  "The  existence  of 
reasonable  and  ])i'ol)able  cause  is  an  inference  of  fact.  It 
must  be  derived  from  all  the  circiuustances  of  the  case.  I 
regret,  therefore,  to  find  the  law  to  be,  that  it  is  an  infer- 

instances  there  has  ))cen  an  undue  or  unreasonable  prejudice  or  preference 
.  .  .  arc  questions  of  fact  depending  on  the  matters  proved  in  each  case." 
Int.  Com.  Comm.  v.  Alabama  l?y.  Co.,  168  IT.  S.  144,  170  (1897). 
Of  this  class  of  cases  Homctliing  more  is  said,  infra,  249. 

1  Lister  v.  I'crrymaii,  L.  H.  4  II.  L.  521. 

2  2  Q.  B.  109. 


LAW  AND  FACT  IN  JURY   TRIALS.  229 

ence  to  be  drawn  by  the  judge,   and  not  by  the  jury.      I 
think  it  ought  to  be  the  other  way."^ 

1  In  the  same  case,  per  Lord  Colonsay,  a  Scotch  Lord :  "  I  have  fre- 
quently had  to  deal  with  cases  of  this  kind  in  the  other  end  of  the  island  ; 
but  there  this  question  of  want  of  reasonable  and  probable  cause  is  treated 
as  an  inference  in  fact  to  be  deduced  by  the  jury  from  tlie  whole  circum- 
stances of  the  case,  in  like  manner  as  the  question  of  malice  is  left  to  the 
jury.  If  I  had  tried  the  case  there  I  should  have  left  this  matter  to  the 
jurv  ;  and  if  the  jury  had  found  a  verdict  for  the  defendant,  I  should  iiave 
approved  of  that  verdict  for  reasons  I  am  about  to  explain.  .  .  .  But  in 
Euf^land  it  is  settled  law  that  this  is  a  matter  for  the  court  to  deal  with. 
The  court  deals  with  it  as  an  inference  to  be  drawn  by  the  court  from 
the  facts,  but  whether  an  inference  of  law  or  an  inference  of  fact  does  not, 
I  think,  appear  from  the  reports.  I  do  not  see  clearly  whether  it  is  called 
an  inference  of  law  merely  because  it  is  left  to  the  court,  or  whether  it  is 
left  to  the  court  because  it  is  really  an  inference  of  law.  But,  undoubtedly, 
it  appears  to  be  settled  law  in  this  country  that  want  of  reasonable  and 
probable  cause  is  matter  for  tlie  court.  .  .  .  Probably  it  became  so  from 
anxiety  to  protect  parties  from  being  oppressed  or  harassed  in  consequence 
of  having  caused  arrests  or  prosecutions  in  the  fair  pursuit  of  their  legiti- 
mate interests,  or  as  a  matter  of  duty,  in  a  country  where  parties  injured 
have  not  the  aid  of  a  public  prosecutor  to  do  these  things  for  them. 
Finding  that  I  had  to  deal  with  this  as  a  matter  of  infereuce  in  law,  I  was 
desirous  to  ascertain  what  were  the  rules  or  principles  of  law  by  wliich  the 
court  ought  to  be  guided  in  drawing  that  inference.  I  did  not  find  that 
there  were  any.  Neither  in  the  very  able  argument  we  heard  from  the 
bar,  nor  in  the  judgments  set  out  in  these  papers,  nor  in  the  cases  that 
have  been  referred  to,  are  any  such  rules  or  principles  enunciated.  .  .  . 
And  upon  a  careful  consideration  of  the  decisions,  it  seems  to  me  impos- 
sible to  deduce  any  fixed  and  definite  principle  to  guide  and  assist  the 
judge  in  any  case  that  may  come  before  him.  Chief  Justice  Tindal's 
rule  seems  almost  the  only  one  that  can  be  resorted  to,  namely,  that  there 
must  have  existed  a  state  of  circumstances  upon  which  a  reasonable  and 
discreet  person  would  have  acted.  Now,  in  the  system  to  which  I  have 
already  alluded  it  is  thought  that  twelve  reasonable  and  discreet  men  (as 
jurors  are  supposed  to  be)  can  judge  of  that  matter  for  themselves,  and 
that  lawyers  are  not  the  only  class  of  persons  competent  to  determine 
whether  the  information  was  such  as  a  reasonable  and  discreet  man  would 
have  acted  upon.  For  what  is  it  that  a  judge  would  have  to  determine  ? 
lie  would  have  to  determine  whether  the  circumstances  warranted  a 
reasonable  and  discreet  man  to  deal  with  the  matter,  that  is  to  say,  not 
what  impression  the  circumstances  would  have  made  upon  his  own  mind, 
he  being  a  lawyer,  but  what  impression  they  ought  to  have  made  on  the 
mind  of  another  person,  probably  not  a  lawyer."     To  a  similar  effect 


230  LAW   OF   EVIDENCE. 

The  reasons  which  have  availed  to  keep  this  particular 
question  of  fact,  in  actions  for  malicious  prosecution  and 
false  imprisonment,  in  the  hands  of  the  court,  are  easily  to 
be  seen,  and  have  already  been  suggested.  It  is  the  danger 
so  often  recognized  by  the  courts,  e.  g.,  by  Lord  Colonsay,^ 
lest  those  who  would  come  forward  in  aid  of  public 
justice  should  be  intimidated  or  discouraged.  For  this 
reason  the  judge  used  to  refuse  to  give  out  coj^ies  of 
indictments  for  felony  unless  on  a  special  order,  "for 
the  late  frequenc}^  of  actions  against  prosecutors  (which 
cannot  be  without  copies  of  the  indictments)  deterreth 
people  from  prosecuting  for  the  King  upon  just  occa- 
sions."^ Such  orders  were  refused  where  there  ap- 
peared to  the  court  to  have  been  probable  cause  for  the 
prosecution.  In  1697,  "  per  Holt,  Chief  Justice,  if  A  be 
indicted  of  felony  and  acquitted,  and  he  has  a  mind  to 
bring  an  action,  the  judge  will  not  permit  him  to  have 
a  copy  of  the  record,  if  there  was  probable  cause  of  the 
indictment,  and  he  cannot  have  a  copy  without  leave."  ^ 
And,  in  the  last  half  of  the  next  century,  Blackstone  tells 
us  that,  "in  prosecutions  for  felony  it  is  usual  to  deny  a 
copy  of  the  indictment,  where  there  is  any,  the  least, 
probable  cause  to  found  such  prosecution  upon."^ 

The  plain  truth,  then,  about  the  matter  now  under  con- 
sideration is,  that  for  reasons  of  policy  the  courts  still 
continue  to  retain  the  determination  of  a  part  of  the  total 
issue  of  fact.  If  this  were  confessed,  instead  of  dis- 
guising a  question  of  fact  for  the  court  under  the  name 
of  a  question  of  law,  much  confusion  would  be  avoided.^ 

was  the  opinion  of  tlic  Lord  Chancellor  Hatherley.     And  so  Burton  v. 
liy.  Co.,  33  Minn.  18!).     See  also  Newell,  Malic.  Pros.  277. 

1  Supra,  229. 

2  Orders  of  tlie  Judges  in  1064,  Kelyng  (old  ed.),  3. 

8  Groenvclt  v.  Burrell,  1  Ld.  Kaym.  252  ;  s.  c.  Carthew,  421,  "for  the 
court  will  never  help  any  litigious  suit." 

*  3  Com.  126.  Of  course  in  such  situations  reasonable  and  probable 
cause  is  for  the  court.     Su/irn,  214,  n.  3. 

''  See,  for  instance,  such  cases  as  Bulkeley  v.  Smith,  2  Duer,  261 ;  Ball  v. 


LAW   AND  FACT  IN  JURY  TRIALS.  231 

From  the  beginning  there  has  been  confusion.  Through- 
out, the  right  to  decide  whether,  on  the  pleadings  or  evi- 
dence, there  was  any  case  of  reasonable  and  probable  cause , 
has  tended  to  be  confounded  with  that  of  deciding  whether 
in  fact  it  is  proved  to  have  existed.  There  is  much  rea- 
son for  believing  that  the  leading  modern  case  of  Panton 
V.  Williams  ^  should  have  been  decided  the  other  way,  and 

Rawles,  93  Cal.  222  ;  and  Hess  v.  Oregon  German  Bank,  49  Pac.  Rep.  803 
(Oregon,  Aug.  1897) :  and  compare  Rowlands  v.  Samuel,  1 1  Q.  B.  38,  41 
n. ;  Douglass  v.  Corbett,  6  El.  &  Bl.  511,  per  Coleridge,  J.;  and  Stephen, 
Malic.  Pros.,  pasnim.  What  is  regarded  as  the  true  method  of  handling  this 
question  is  set  forth  in  a  very  recent  case,  correcting  a  common  method 
which  some  courts  have  followed,  —  that  of  leaving  a  definition  to  the 
jury,  with  instructions  to  say  whether,  on  tiiat  definition,  there  was  rea- 
sonable and  probable  cause.  Herbert  Stephen,  in  his  little  book  on  IVIali- 
cious  Prosecution  (pp.  70-83),  citing  Abrath  v.  N.  E.  Ry.  Co.,  11  App. 
Cas.  247,  conceives  that  this  is  the  true  modern  practice,  and  that  there- 
fore the  old  anomaly  is  now  in  effect  done  away  with.  But,  in  a  case  just 
referred  to,  Hess  v.  Oregon  German  Bank  (ubi  supra),  p.  805,  the  court,  with 
accurate  discrimination,  remarks:  "'Probable  cause  is  in  the  nature  of 
a  judgment  to  be  rendered  by  the  court  upon  a  special  verdict  of  the  jury,' 
says  Judge  Harrison  in  Ball  v.  Rawles,  93  Cal.  227,  'and  is  not  to  be  ren- 
dered until  after  the  jury  has  given  its  verdict  upon  the  facts  by  which  it  is 
to  be  determined.'  It  is  not,  however,  necessary  that  the  facts  be  found  by 
the  jury  in  the  form  of  a  special  verdict.  The  court  may  instruct  them  to 
render  their  verdict  for  or  against  the  defendant,  according  as  they  shall 
find  the  facts  designated  to  it,  which  the  court  may  deem  suiScient  to  consti- 
tute probable  cause.  But  it  is  necessary  for  the  court,  in  each  instance,  to 
determine  whether  the  facts  that  they  may  find  from  the  evidence  will  or 
will  not  establish  that  issue.  Neither  is  it  competent  for  the  court  to  give  to 
the  jury  a  definition  of  probable  cause,  and  instruct  them  to  find  for  or 
against  the  defendant,  according  as  they  may  determine  that  the  facts  are 
within  or  without  that  definition.  Such  an  instruction  is  only  to  leave  to 
them  in  another  form  the  function  of  determining  whether  there  was  prob- 
able cause.  The  court  cannot  divest  itself  of  its  duty  to  determine  this 
question,  however  complicated  or  numerous  may  be  the  facts.  It  must  in- 
struct the  jury  upon  this  subject  in  the  concrete,  and  not  in  tlie  abstract, 
and  must  not  leave  to  that  body  the  oflSce  of  determining  the  question,  but 
must  itself  determine  it,  and  direct  the  jury  to  find  its  verdict  in  accordance 
with  such  determination.  The  court  should  group  in  its  instructions  the 
facts  which  the  evidence  tends  to  pi'ove,  and  then  instruct  the  jury  that,  if 
they  find  such  facts  to  be  established,  there  was  or  was  not  probable  cause, 
as  the  case  may  be,  and  that  their  verdict  must  be  accordingly." 
1  2  Q.  B.  169  (1841). 


232  LAW  OF  EVIDENCE. 

that  the  weight  of  authority  at  that  time  supposed  to  exist 
in  its  favor  woukl  have  been  found,  on  a  more  critical 
examination,  to  shrink  to  slender  proportions.^ 

((I)  A  singular  product  of  the  old  ways  of  withdrawing 
questions  from  the  jury  was  developed  in  the  subtle  doc- 
trine of  "color"  in  pleading. 

The  word  "color"  seems  formerly  to  have  designated 
the  sort  of  reason  which  would  justify  one  in  pleading 
specially,  where  his  duty  was,  prima  facie,  to  plead  the 
general  issue;  he  could  do  this  if  he  could  show  some 
ground,  in  point  of  law  or  fact,  on  which  the  jury  would 
naturally  be  misled,  if  he  were  to  follow  the  general  rule, 
not  setting  out  the  special  matter  in  his  pleadings.  This 
might  be  a  purely  fictitious  ground.  Illustrations  of  this 
are  found  in  a  note  on  color  in  the  Year  Books  of  the  year 
1440,  before  referred  to,^  In  this  we  are  told  that  "this 
color  is  always  matter  in  law,  or  some  other  difficulty  for 
the  lay  people;  ...  as  in  case  I  bring  assize  against 
you,  and  you  say  that  you  yourself  leased  the  same  land 
to  one  for  the  term  of  his  life,  and  then  granted  the 
reversion  to  me,  and  then  the  tenant  for  life  died,  and  I 
am  claiming  the  reversion  by  force  of  this  grant,  —  but 
the  tenant  never  attorned;  this  special  matter  is  allowable 
because  it  is  dangerous  to  plead  mil  tort,  since  the  lay- 
men will  try  the  matter  on  the  theory  that  the  reversion 
passes  by  force  of  the  grant,  without  attornment.  .  .  . 
But  where  the  special  matter  is  not  a  matter  of  law  or  of 
dilllfuilty,  the  tenant,  as  defendant,  must  take  the  general 

1  How  easy  it  lias  been  to  sli]),  wliile  not  meaning  to  depart  from 
the  usual  doctrine,  may  be  seen  iu  tlie  case  of  Wass  v.  Stephens,  128 
N.  Y.  1 23,  1 27  ( 1 891 ) :  "  The  question  of  probable  cause  may  be  a  question 
of  law  for  the  court,  or  of  fact  for  the  jury,  d(>i)cnding  upon  the  circum- 
stances. If  the  facts  are  undisputed  and  admit  of  but  one  inference,  the 
question  is  one  of  law  ;  if  disputed,  or  if  capable  of  opposing  inferences,  the 
qucstioti  isfor  the  jury,"  Andrews,  J.,  citing  James  u.  Phelps,  11  A.  &  E. 
4H.t.  And  so  Hums  r.  Erben,  46  N.  Y.  463  ;  Ash  v.  Marlow,  20  Ohio  State, 
110. 

'■i  Y.  15.  1!)  II.  VI.  21,  42.     Supra,  118. 


LAW   AND   FACT   IN  JURY  TRIALS. 

issue;  as,  if  the  tenant  says  that  he  was  seised  unti. 
was  disseised,  whereupon  he  re-entered,  this  plea  is  nc 
allowable,  because  all  men  know  well  that  the  tenant  in 
that  case  is  no  disseisor;  or  if  he  says  that  the  plaintift: 
claims  as  a  younger  son,  for  everybody  understands  that 
the  younger  son  cannot  inherit  before  the  older,"  etc.,  etc. 
If  not  originally,  at  any  rate  later,  "color,"  sometimes 
called  "express  color,"  came  to  designate  a  purely  fictitious 
ground  of  right  on  the  other  side,  put  forward  by  one 
who  was  constructing  a  plea  of  confession  and  avoidance. 
"Color,"  said  Fulthorpe,  J.,  "is  nothing  but  giving  a 
party  un  couleur  de  droit  and  also  an  entry,  but  the  color 
need  not  be  rightful  in  fact,  for  such  color  would  be  bad 
for  the  defendant."^ 

In  St.  Germain's  quaint  dialogue  of  the  "Doctor  and 
Student,"  there  is  an  amusing,  grave  discussion  as  to  the 
morality  of  the  fiction  of  color,  and  incidentally  an  expl'a- 
nation  of  it  by  the  Student.^  The  discussion  ends  by  the 
suggestion  of  the  Student  that  it  is  a  man's  duty,  out  of 
love  to  his  neighbor,  to  save  the  jury  from  the  peril  of  a 
wrong  finding,  by  avoiding  the  general  issue  wherever  he 
can,  —  an  argument  which  the  Doctor  agrees  to  ponder. 
In  setting  forth  this  matter,  the  Student  states  the  rule 
that  one  must  not  plead  detail  which  amounts  only  to  the 
general  issue;  and  yet  in  some  cases  if  he  do  plead  the 
general  issue,  he  will  have  to  leave  a  point  of  law  "to 
the  mouths  of  twelve  laymen,  which  be  not  learned  in  the 
law;  and,  therefore,  better  it  is  that  the  law  be  so  ordered 
that  it  be  put  in  the  determination  of  the  judges  than  of 
laymen."  Accordingly,  the  party  was  permitted  to  turn 
his  traverse  into  a  confession  and  avoidance,  by  alleging 

1  Y.  B.  19  H.  VI.  19,  41 ;  cf.  Y.  B.  21  &  22  Edw.  L  616,  618  (1294). 

2  II.  c.  .5.3.  This  book  was  publi.shed  in  1518.  As  to  the  moralit}' 
of  color,  it  is  said  of  Robert  Hale,  the  father  of  Sir  M.  Hale,  that  "  he 
gave  over  the  practice  of  the  law  because  he  could  not  understand  the 
reason  of  giving  color  in  pleadings  which,  as  he  thought,  was  to  tell  a 
lie ;  and  that  with  some  other  things,"  etc.  Burnet's  Life  of  Sir  Matthew 
Hale,  2. 


LAW   OF   EVIDENCE. 

.  admitting  some  fictitious  ground  of  right  on  the  other 
.ide,  not  quite  defensible  in  point  of  law,  and  then  avoid- 
ing it  by  detailed  matter  which  really  was  only  an  argu- 
mentative general  issue.  This  got  his  facts  on  the  record, 
and  at  the  same  time  the  rule  that  one  must  either  tra- 
verse or  confess  and  avoid,  moulted  no  feather.  Form 
was  preserved,  for  the  party  had  confessed  and  avoided; 
to  be  sure  he  had  set  up  a  mere  fiction;  but  the  other 
party  was  not  allowed  to  deny  it,  and  he  had  kept  to 
the  rules.' 

{e)  Under  this  same  head,  I  may  mention  the  demurrer 
upon  evidence.  Very  soon,  as  it  seems,  after  the  general 
practice  began  of  allowing  witnesses  to  testify  to  the  jury, 
this  interesting  contrivance  for  eliminating  the  jury  came 
into  existence.  Such  demurrers,  like  others,  raised  only 
an  issue  in  law.  They  had  the  effect  to  withdraw  from  the 
jury  all  consideration  of  the  facts,  and,  in  their  pure 
form,  to  submit  to  the  court  two  questions,  of  which  only 
the  second  was,  in  strictness,  a  question  of  law;  namely, 
whether  a  verdict  for  the  party  who  gave  the  evidence 
could  be  given,  («)  as  a  matter  of  legitimate  inference  from 
the  evidence;  (h)  as  a  matter  of  law.  Of  this  expedient 
I  do  not  observe  any  mention  earlier  than  the  year  1456.^ 

1  8tephen,  Pleading,  Tyler's  ed.  206-21. 5.  Compare  2  Eeeves,  Hist. 
Eng.  Law  (Finl.  ed.),  349,  629;  Warner  v.  Wainsford,  Hob.  127. 

-  Y.  B.  .34  II.  VI.  36,  7.  It  is  interesting,  less  than  a  century  and  a  half 
later,  to  observe  B.acon's  conceptions  about  evidence  and  demurrers  upon 
evidence.  In  liis  Maxims  of  the  Law,  Keg.  III.,  in  discussing  the  rule 
tliat  words  are  taken  strictly,  against  tlie  party  who  uses  tlieni,  after  put- 
ting a  case  of  a  demurrer,  and  remarking  the  liberal  construction  of  the 
recorded  evidence,  as  compared  witli  the  construction  of  ])leadings,  he  goes 
on  tiius  :  "And  the  reason  thereof  cannot  be,  because  a  jury  may  take 
knowledge  of  matters  not  within  the  evidence,  and  the  court,  contrariwise, 
cannot  take  knowledge  of  any  matter  not  within  the  pleas  :  for  it  is  clear 
tliat  if  tlie  evidence  had  l)een  altogether  remote  and  not  proving  the  issue, 
there,  althongli  tlie  jury  might  find  it,  yet  a  demurrer  might  well  be  taken 
npon  tlio  evidence.  But  I  take  the  reason  of  diffcronce  to  be,  between 
pleadings,  wliicli  are  but  ojicnings  of  the  cn^c,  and  evidences,  which  are 
the  proofs  of  an  i.ssue  :  for  jdeadings,  being  but  to  open  the  verity  of  the 


LAW  AND   FACT   IN   JURY   TRIALS.  235 

Xear  the  end  of  the  last  century  demurrers  upon  evidence 
got  their  death  blow  in  England,  by  the  decision  in  the 
case  of  Gibson  v.  Hunter,  carrying  down  with  it  also  the 
great  case  of  Lickbarrow  v.  Mason,  which,  like  the  former, 
had  come  up  to  the  Lords  upon  such  a  demurrer.^  It  was 
there  held  that  in  cases  of  complication  or  uncertainty 
in  the  evidence,  tlije  party  demurring  must  specify  upon 
the  record  the  facts  which  he  admits. 

This  decision  got  rid  of  the  first  question,  at  least  of  its 
chief  difficulties,  and  left  only  the  second.  It  compelled 
the  demurring  party  to  abandon  wholly  a  notion,  which 
seems  to  have  existed  in  the  profession,  that  by  this  pro- 
ceeding he  was  shifting  to  the  court  the  duty  of  "judging 
the  facts,"  and  was  thus  avoiding  the  uncertainties  of  the 
jury.  Always  it  had  been  the  theory  of  this  sort  of  de- 
murrer that  the  demurring  party  admitted  all  the  evi- 
dence of  the  other  side,  and  all  the  conclusions  therefrom 
which  a  jury  might  lawfully  and  rightly  reach.  As 
regards  conclusions  of  fact,  the  whole  field  of  rational 
inference  was  open  to  a  jury,  and  a  demurrer  admitted  all 
that  could  rationally  be  found  against  the  party  demur- 
ring. The  decision  in  Gibson  v.  Hunter,  so  far  as  the 
advisory  opinion  of  the  judges  may  be  thought  to  give  the 
true  reasons  for  it  (for  this  is  all  we  have  to  go  by),  had 

matter  in  fact  indifferently  on  both  parti5,  have  no  scope  and  conclusion  to 
direct  the  construction  and  intendment  of  them,  and  therefore  must  be 
certain ;  but  in  evidence  and  proofs,  the  issue,  which  is  the  state  of  the 
question  and  conclusion,  shall  incline  and  apply  all  the  proofs  as  tending 
to  that  conclusion.  Another  reason  is,  that  ])leadings  must  be  certain, 
because  the  adverse  party  may  know  whereto  to  answer,  or  else  he  were 
at  a  mischief  ;  which  mischief  is  remedied  by  demurrer  :  but  in  evidence, 
if  it  be  short,  impertinent,  or  uncertain,  the  adverse  party  is  at  no  miscliief, 
because  it  is  to  be  thought  the  jury  will  pass  against  him  :  yet,  neverthe- 
less, because  the  jury  is  not  compellable  to  sujiply  the  defect  of  evidence 
out  of  their  own  knowledge,  though  it  be  in  their  liberty  so  to  do,  there- 
fore the  law  alloweth  a  demurrer  upon  evidence  also." 

1  Gibson  v.  Hunter,  2  11.  Bl.  187;  Lickbarrow  v.  Mason,  \h.  211.  See 
Lord  Blackburn's  comments  on  these  cases  in  Sewell  v.  Burdick,  10  App. 
Cas.  74,  99  (1884). 


236  LAW  OF   EVIDENCE. 

this  effect:  namely,  it  compelled  the  parties  to  reach  an 
agreement  and  specification  as  to  what  was  thus  admitted 
by  the  demurrer,  before  the  case  came  to  the  court  in  haiic. 
The  rule  now  laid  down  had  the  effect  to  adjust  below, 
before  the  single  judge,  all  debate  over  this  question;  the 
demurring  party  was  required  to  say,  at  that  stage, 
exactly  what  he  was  admitting;  the  single  judge  might 
compel  a  joinder  in  demurrer,  when  proper  admissions 
were  made,  and  might  compel  the  making  of  proper  ad- 
missions by  allowing  a  refusal  to  join.  And  thus  it  was 
made  sure  that  when  the  upper  court  received  the  case, 
it  came  to  them  purged  of  mere  questions  of  general  rea- 
soning, with  all  the  inferences  of  fact  stated. 

It  will  easily  be  perceived  that  a  demurrer  upon  evi- 
dence left  open  no  question  whatever  in  the  law  of  evi- 
dence, that  is  to  say  of  the  admissibility  of  evidence;  but 
only,  like  other  demurrers,  questions  of  substantive  law. 
As  the  facts  out  of  which  these  questions  of  law  arose 
were  supposed  to  be  admitted,  so  all  questions  relating  to 
the  evidence  of  those  facts  had  become  immaterial.-^ 

This  piece  of  machinery  had  come  to  seem  a  clumsy, 
dilatory,  and  expensive  one.  It  stopped  the  trial,  and 
required  an  entry  on  the  record  of  all  the  evidence.  And 
so,  when  once  the  demurring  party  was  driven  from  his 
vague  expectations  of  getting  something  out  of  a  court,  in 
the  considering  of  his  evidence,  which  he  might  not  get 
from  a  jury;  when  once  it  was  forced  clearly  upon  his 
attention,  that,  not  only  did  a  demurrer  upon  evidence 
commit  liiin  irrevocably  to  all  those  inferences  from  the 
evidence  which  were  most  unfavorable  to  him,  but  that  he 
must  set  these  conclusions  all  down  in  writing  before- 
hand, then  tliis  ancient  instrument  of  justice  fell  wholly 

'  "  For  a  (If'itinrrcr  ii|iiiii  cvidciico  poos  to  tlic  law  ni)on  tlio  matter, 
and  not  to  the  tnitli  of  tin;  fact,  for  it  admits  tliat  to  be  true,  but  denies 
tlio  operation  of  the  law  thereupon."  Lewis  v.  Laric,  I'lowdcn,  403,  411 
(ir)?!);  Fit/.harris  v.  15oiun,  1  L<;v.  87  (lOfi^);  (Hhson  v.  Hunter,  2  H.  HI 
187  (17'j;j). 


LAW  AND  FACT  IN  JURY  TRIALS.  237 

into  disuse  in  England.''  It  had  survived  its  usefulness 
and  must  give  place  to  shorter  and  more  efficient  ways  of 
serving  the  necessities  of  a  new  generation.  It  had  come 
into  existence  at  a  time  when  the  general  introduction  of 
witnesses  to  the  jury  and  the  requirement  tliat  evidence 
must  be  given  to  them  publicly  in  open  court,  had  wrought 
the  first  revolution  in  this  great  mode  of  trial.  As  that 
change  had  given  new  effect  to  the  attaint  by  making  it 
certain  that  the  jury  were  not  ignorant  of  the  matters 
presented  to  them,  so  the  demurrer  upon  evidence  had 
operated  still  further  to  moderate  their  "  unchartered  free- 
dom." It  enabled  a  party  to  secure  definiteness  to  the 
body  of  evidence  which  he  had  to  reckon  with.  By 
admitting  all  that  his  adversary  alleged,  setting  it  down 
upon  the  record  and  appealing  to  the  law  as  arising  out  of 
these  facts  and  the  just  inferences  from  them,  he  escaped 
from  the  operation  of  a  jury's  caprice,  and  from  any  resort 
on  their  part  to  that  unknown  mass  of  possible  knowledge 

1  For  the  misconception  sometimes  entertained  as  to  the  length  to 
which  the  admissions  of  a  demurrer  upon  evidence  went,  see  the  discussion 
in  Cocksedge  v.  Fanshaw,  1  Doug.  119  (1779-1783).  In  that  case  Daven- 
port, for  the  party  demurring,  "  insisted  that,  although  a  demurrer  to 
evidence  admits  the  truth  of  all  the  particular  facts,  it  does  not  admit  the 
conclusions  in  point  of  fact,  more  than  those  in  point  of  law,  which  the 
party  offering  the  evidence  contends  for.  .  .  .  That,  in  this  respect, 
the  effect  of  such  a  demurrer  differs  from  a  special  verdict,  and  that  it  may 
be  used  where  the  party  demurring  is  unwilling  to  trust  the  jury  with  the 
inference  in  point  of  fact." 

As  to  the  effect  of  the  rule  in  Gibson  r.  Hunter,  see  Lord  Blackburn's 
remarks  in  the  House  of  Lords,  in  Sewell  ik  Burdick,  10  App.  Cas.  74,  99 
(1884).  Of  the  famous  opinion  of  Chief  Justice  Eyre  Lord  Blackburn 
says :  "  He  explains  it  [tlie  demurrer],  and  states  his  very  confident  ex- 
pectations (which  have  been  justified  by  the  result)  tliat  no  demurrer  on 
evidence  would  again  be  brought  before  the  House." 

An  unfortunate  and  never  corrected  misprint  in  the  opinion  of  C.  J. 
Eyre  may  properly  be  mentioned  here.  At  p.  207  of  2  H.  Blackstone, 
where  the  opinion  reads :  "  If  the  party  who  demurs  will  admit  the  evidence 
of  the  fact,  the  evidence  of  which  fact  is  loose  and  indeterminate,"  etc. 
Obviously  the  word  "evidence,"  above  printed  in  italics,  should  be 
"  existence." 


238  LAW   OF  EVIDENCE. 

which  continued  for  centuries  to  be  open  to  them.  True, 
no  man  could  be  compelled  to  give  up  a  jury,  while  any- 
thing remained  to  be  tried;  but  when  he  had  put  in  his 
evidence  and  stopped ;  and  when  his  adversary  had  admitted 
it  all,  and  all  that  legitimately  followed  from  it,  there 
was  nothing  to  go  to  a  jury ;  he  might  justly  be  required 
to  join  in  the  demurrer.  A  jury,  in  those  days,  it  is  true, 
might,  perhaps,  out  of  their  own  knowledge,  supply  other 
facts  that  would  help  out  this  evidence;  and  so  a.  party 
might  be  thought  to  lose  something,  when  driven  to  join. 
But,  as  Lord  Bacon  said  :  ^  "  Because  the  jury  is  not  com- 
pellable to  supply  the  defect  of  evidence  out  of  their  own 
knowledge,  though  it  be  in  their  liberty  so  to  do,  therefore 
the  law  alloweth  a  demurrer  upon  evidence  also." 

Lasting  over  into  an  age  when  the  attaint  was  obsolete; 
when  juries  could  no  longer  act  upon  what  was  privately 
known  to  them,  but  only  on  what  was  publicly  given  in 
court;  when  their  excesses  in  dealing  with  evidence  were 
guarded  against  by  new  trials,  and  reservations  at  nisi 
prius,  and  a  freer  use  of  simple  motions  to  the  court;  this 
old  demurrer  easily  submitted  to  a  new  shock,  and  died 
out.  That  the  rule  in  Gibson  v.  Hunter  was  a  novelty  is 
fairly  plain  from  the  case  of  Cocksedge  v.  Fanshaw,^  ten 
years  earlier.  The  rule  was  not  always  followed  in  this 
country ;  but  the  fact  tliat  it  was  a  novelty  was  sometimes 
not  understood.*  Here  also  demurrers  to  evidence  are 
mainly  obsolete;  what  is  called  by  this  name  now  is  often 
a  very  differcnit  thing. 

In  handling  this  keen-edged  instrument,  it  is  more  than 
likely  tliat  the  just  line  between  the  duties  of  court  and 
jury  was  often  overstepped  by  assuming  that  what  the 
court  thought  the  right  inference  was  the  only  one  allovv- 

1  Sii}>ra,  23-1  ii. 

2  1  Dou^.  119  (1779-1783). 

8  Tatrick  v.  Halleck,  1  Johns.  241  (1800);  WliitLiiigtoii  v.  Cliri.sUan, 
2  Randolph,  3.57-8  (1824);  'I  rout  r.  ]{.  ]{.  Co.,  23  Gratt.  619-20,  ()3!3-40, 
(1873).  Sec  the  ca.scs  on  tliis  siihjcct  in  Thaycr'.s  Cases  on  Evidence, 
210-238 


LAW  AND  FACT  IN  JURY  TRIALS.  239 

able  to  the  jury.  Nothing,  as  has  been  said  already,  is 
more  common,  even  to-day,  than  the  assumption  that  only 
a  question  of  law  remains,  when,  in  reality,  the  most  im- 
portant inferences  of  fact  are  still  to  be  drawn.  In  this 
way  much  which  belongs  to  the  jury  remains  in  the  hands 
of  the  judges,  or  passes  over  to  them  unnoticed. 

(/)  And,  finally,  among  the  adjustments  of  procedure 
by  which,  through  the  influence  of  the  judge  and  the 
co-ope»ation  of  the  parties,  the  jury  was  often  partly  or 
wholly  eliminated,  was  a  method  less  remarked  than  it 
should  be,  by  practitioners  and  students  of  our  law.  In 
England,  far  more  commonly  than  here,  the  effort  has 
been  to  shape  cases  for  the  appellate  court  so  as  to  get  at 
the  substance  of  what  is  in  controversy,  and  so  as  to  settle 
everything  at  the  appellate  stage  and  avoid  the  neces- 
sity of  a  new  trial.  The  great  influence  of  the  English 
judges,  powerfully  felt  all  through  the  trial,  has  helped  to 
this;  and  perhaps  also  it  is  an  indirect  result  of  the  Eng- 
lish classification  of  their  men  of  law,  by  which  the  bar- 
rister, being  less  intensely  committed,  as  a  mere  partisan 
of  his  client,  than  here,  and  less  engaged  to  secure  for  the 
client  every  conceivable  loop-hole  of  possible  advantage, 
and  every  chance  of  success,  however  desperate,  is  left 
freer  to  perceive  those  public  and  private  considerations 
that  make  for  an  early  settlement  of  any  given  piece  of 
litigation.  Such  causes  as  these,  coupled  with  some  acci- 
dental reasons,  established  in  England  traditional,  elastic 
methods  of  procedure,  which  left  in  the  hands  of  the 
judges  a  very  great  and  often  unobserved  power  over 
ordinary  issues  of  mere  fact.  Any  one  who  will  take 
the  trouble  to  notice  how  seldom  a  bill  of  exceiDtions 
with  its  narrow  question  of  mere  law,  and  its  frequent 
necessity  for  a  new  trial,  has  ever  been  resorted  to  in 
English  practice  in  recent  centuries;  and  that  this  method 
of  carrying  np  questions  from  the  trial  court  has  been 
wholly  abolished  in  England  since  1875  ;  while  in  this 
country  it  has  long  been  one  of  the  commonest  instruments 


240  LAW  OF  EVIDENCE. 

of  appellate  procedure,  and  to-day  flourishes  as  the  great 
and  characteristic  one;  will  be  helped  not  merely  to 
see  certain  substantial  differences  between  English  legal 
administration  and  our  own,  but,  what  is  more  to  the 
present  purpose,  to  see  the  way  in  which  in  England,  the 
mother  of  our  own  traditional  system,  these  things  have 
kept  in  the  hands  of  the  judges  so  great  a  share  of  power 
in  determining  issues  of  fact. 

An  illustration  of  what  is  now  suggested  may  be  seen  in 
a  case  which  has  been  already  cited. ^  The  judges  of  the 
Divisional  Court,  on  appeal  from  the  County  Court,  were 
of  opinion  that  the  judge  below  should  have  left  the  ques- 
tion to  the  jury  instead  of  deciding  it  himself.  The 
parties  wished  the  upper  court  to  decide  the  whole  matter 
and  not  to  send  it  back  for  a  new  trial,  and  the  judges 
did  this  —  holding  that  the  judge  below  had,  upon  the 
whole,  reached  the  right  conclusion.  "I  wish  to  say," 
said  Williams,  J.,  "that  unless  the  course  we  are  about 
to  pursue  is  justified  by  a  rule  of  practice,  it  is  our  duty 
to  send  the  case  back,  for  we  have  no  right  to  assume  a 
jurisdiction  which  does  not  belong  to  us.  There  is  a  rule 
which  is  adopted  on  motions  for  a  new  trial,  and  ujjon 
which  we  are  going  to  act,  that  when  the  cause  has  been 
tried  and  the  judges  feel  that  they  have  all  the  facts  before 
them  so  that  they  are  entitled  to  give  a  judgment  that  will 
finally  settle  the  matters  in  difference  between  the  parties, 
they  are  entitled  to  give  such  a  judgment,  althougli  the 
practice  involves,  I  will  not  say  usurpation  by  the  judges, 
but  a  partial  transfer  to  them  of  the  functions  of  the  jury. 
Here  w(^  have  got  the  whole  of  the  j)laintiif's  duties  and 
the  surrounding  circumstances  admitted."' 

1  Poarco  w   Lansdowno,  00  l.aw  TiiiioH  Mo]^.  niC  (18<.).3). 

2  For  tlif!  lilicral  and  elastic  rules  of  Kiiglisli  ])roco(lnre  now.soe  Wilson, 
Judicature  Ads  ;  fur  (■xaiii)il(\  this:  "  A  new  trial  shall  not  bo  granted  on 
the  f^round  of  iiiisdircctioii  or  of  the  improper  admission  or  rejection  of 
evidence,  or  hecansc  tlu-  verdict  of  the  jury  was  not  taken  upon  a  question 
whicli  the  jnd'^c  at  the  trial  was  not  asked  to  leave  to  them,  unless  in  the 
opinion  of  the  conrt  to  wliicii  tiic  a))i)lication  is  made  soino  substantial 


LAW  AND   FACT  IN  JURY  TRIALS.  241 

At  common  law,  besides  the  right  to  move  the  court  for 
a  uew  trial,  which  came  to  be  recognized  as  of  course, 
there  grew  up  the  practice  of  reserving  questions  for 
the  full  court  in  various  forms,  with  authority  to  make 
such  specified  disposition  of  the  case,  by  nonsuit,  or  a 
changed  verdict,  or  a  judgment  this  way  or  that,  as  might 
have  been  agreed  on  by  counsel,  with  the  approval  of  the 
judge.  One  or  two  brief  and  partial,  but  valuable,  expo- 
sitions of  this  subject  have  been  made  in  the  opinions  of 
Lord  Blackburn;  and  as  it  is  difficult  to  find  any  good 
account  of  it  in  our  books,  I  give  from  these  opinions,  in 
a  note,  the  whole  of  what  that  learned  judge  says  about  it.^ 

wrong  or  miscarriage  has  been  thereby  occasioned  in  the  trial ;  and  if  it 
appear  to  such  court  that  such  wrong  or  miscarriage  affects  part  only  of 
the  matter  in  controversy,  or  some  or  one  only  of  the  parties,  the  court 
may  give  final  judgment  as  to  part  thereof,  or  some  or  one  only  of  the 
parties,  aud  direct  a  uew  trial  as  to  the  other  part  only,  or  as  to  the  other 
j)arty  or  parties."  Wilson,  Judicature  Acts  (7th  ed.  1888),  331,  Order 
xxxix.  Rule  6. 

1  So.  East.  Ry.  Co.  v.  Smitherman,  a  much  contested  case,  where 
a  valuable  opinion  given  in  the  House  of  Lords  is  reported  nowhere  ex- 
cept in  the  London  Times  of  July  17,  1883,  at  page  3  ;  and  Dublin,  etc. 
Ry.  Co.  V.  Slattery,  3  App.  Cas.  1155,  1204  (1878).  Both  were  accident 
cases.  The  facts  are  not  important  for  the  present  purpose.  In  the  former, 
in  reversing  a  decision  which  refused  a  new  trial,  Lord  Blackburn,  whose 
opinion  was  concurred  in  by  the  other  Lords,  said  :  "  I  think  that  there 
has  been  some  misapprehension  as  to  the  effect  of  the  alterations  in  the 
law  introduced  by  the  orders  39  and  40  in  the  schedule  1  to  the  Supreme 
Court  of  Judicature  Act,  1875,  and  I  think  it  better  to  begin  by  explaining 
what  I  conceive  to  be  the  effect  of  those  orders.  At  common  law  all  trials 
by  jury  were  before  the  court  in  banc,  as  trials  at  bar  now  are.  The  court 
took  tlie  verdict  according  to  what  they  thought  the  effect  of  the  findings 
of  the  jury  before  themselves,  and  gave  what  they  thought  the  proper 
judgment.  When  trials  at  nisi  prius  were  introduced,  at  first  only  in  the 
country  before  Justices  of  Assize,  and,  at  a  much  later  period,  in  Middle- 
sex and  London,  where  there  were  no  assizes,  before  the  Cliief  Justices  of 
the  Courts  of  Queen's  Bench  and  Common  Pleas  and  the  Chief  Baron,  — 
the  verdict  was  taken  by  the  judge  who  tried  the  case  at  nisi  prius,  ac- 
cording to  what  he  thought  the  legal  effect  of  the  findings,  but  he  could 
not  enter  judgment.  He  returned  to  the  court  the  verdict,  and,  on  the 
fourth  day  of  term,  the  verdict,  as  he  returned  it,  was  entered  on  the 

IG 


242  LAW   OF   EVIDENCE. 

These  arrangements,  and  a  common  habit  of  courts  and 
lawyers   to   overlook   the    exact   bearing   of   them  on  the 

record  in  what  was  called  the  postea,  and  on  that  the  court  in  banc  gave 
judgment.  A  practice  began  at  least  as  early  as  the  beginning  of  the 
seventeenth  century,  by  which  the  court  i'n  i«nc  would  entertain  a  motion, 
if  made  within  the  first  four  days  of  term,  while  the  proceedings  were,  as 
it  was  called,  in  paper  only,  to  stay  the  postea,  and  if  it  was  made  out  that 
there  had  been  an}'  miscarriage  at  the  trial,  to  set  aside  the  proceedings  at 
nisi  /irius  and  grant  a  new  trial.  But  they  could  do  no  more.  However 
clearly  it  appeared  that  tlie  verdict  ought  to  have  been  entered  for  the 
other  party,  the  court  in  banc  could  not  enter  it.  The  judge  who  tried 
the  cause  at  nisi  prius  might  by  his  notes  amend  the  postea,  but  not  the 
court.  This  defect  was  partially  cured  by  a  practice  which  grew  up,  by 
which  the  judge,  with  the  consent  of  the  parties,  for  he  could  not  do  it 
without,  reserved  leave  to  move  in  banc  to  enter  the  verdict  the  other  way. 
This  practice  had,  before  the  Common  Law  Procedure  Act,  1852,  become 
the  established  law.  There  was  no  reason  why  the  motion  should  not, 
where  leave  was  reserved,  be  in  the  alternative  to  enter  the  verdict  accord- 
ing to  the  leave  reserved,  or  to  have  a  new  trial,  on  the  ground  either  of 
misdirection  of  the  judge  or  anything  else  which  amounted  to  a  miscar- 
riage on  the  trial.  One  well-recognized  head  of  miscarriage  was  when  the 
verdict  was  against  the  weight  of  evidence ;  where,  if  the  court  thought 
that,  though  the  right  direction  in  law  was  given,  the  jury  had,  either  from 
misapprehension  or  disregard  of  the  direction,  or  not  properly  appreciating 
and  considering  the  evidence,  found  a  verdict  so  unsatisfactory  that  it 
ou"-ht  not  to  .stand,  and  that  the  question  should  be  submitted  to  another 
jury,  and  for  that  reason  granted  a  new  trial.  Now,  I  think,  no  doubt  was 
ever  entertained,  at  least,  I  am  not  aware  of  any  case  in  which  any  was 
expressed,  that  the  court,  in  considering  whether  the  verdict  was  satis- 
factory or  not,  looked  at  everything  bearing  on  the  conduct  of  the  jury  up 
to  the  time  when  the  verdict  was  finally  taken.  If,  by  consent  of  tiic  j)ar- 
ties,  anything  was  reserved  for  the  court,  that  was  to  be  determined  by 
the  court;  but,  whether  it  was  reserved  or  not,  could  not  prevent  the 
court  from  considering  how  the  verdict  on  other  points  was  obtained,  and 
wliethcr  it  was  satisfactory  or  not.  If  there  had  been  a  bill  of  e.xceptions 
tendered,  the  court  would  not  entertain  a  motion  for  a  new  trial  on  any 
ground  which  might  have  been  included  in  it,  unless  the  bill  of  exce])tions 
was  abandoned,  but  the  court  would  still  hear  a  motion  to  set  aside  the 
verdict  as  against  evidence. " 

For  tli(!  changes  introduced  by  the  .Judicature  Acts  see  Wilson,  supra. 

In  the  second  of  \ht:  two  cases  above  named,  a  few  years  earlier.  Lord 
BL'u-kbnrn  had  discussed  the  same  matters,  in  a  dissenting  opinion.  He 
said  :  "  When,  as  in  the  jiresent  case,  there  is  doubt  as  to  what  the  proper 


LAW   AND  FACT  IN  JURY  TRIALS.  243 

decisions  to  which  they  lead,  when  these  are  cited  as  pre- 
cedents, have   deeply  affected  the  substantive  law.     Pre- 

direction  in  law  is,  the  judge  ought,  as  far  as  practicable,  to  put  the  case 
in  a  proper  train  for  having  the  verdict  entered  without  any  new  trial, 
according  to  what  the  law  may  ultimately  be  ascertained  to  be.  Down  to 
the  beginning  of  the  seventeenth  century  this  could  only  be  done  by  find- 
ing a  special  verdict ;  and  unfortunately  there  was  so  much  technical  nicety 
recpiired  in  framing  a  special  verdict,  that  it  required  great  skill  and  some 
good  fortune  to  be  able  to  raise  the  real  question  on  it.  At  the  time  I  have 
mentioned  a  practice  began  of  the  court  in  banc,  during  the  first  four  days 
in  term,  whilst  the  case  was  yet  in  the  paper,  granting,  in  the  discretion 
of  the  judges,  a  new  trial,  if  there  appeared  to  have  been  any  miscarriage 
on  the  trial.  This  was  found  so  very  convenient  that  what  at  first  was 
only  an  exercise  of  the  equitable  discretion  of  the  courts  became  a  recog- 
nized system  of  law,  and  it  became  usual  for  the  judge  to  give  the  direc- 
tion which  in  his  opinion  at  the  trial  was  the  right  one,  reserving  leave  to 
enter  the  verdict  according  to  what  he  ought  to  have  directed.  This 
superseded  special  verdicts  wliere  it  was  not  intended  to  carry  the  case 
beyond  the  court  in  banc,  and  on  these  reservations  the  court  in  banc  did 
not  require  the  same  technical  precision  which  had  unfortunately  become 
requisite  on  a  special  verdict.  It  looked  to  the  trial  to  see  what  was  really 
in  dispute,  and  what  the  real  point  was ;  but  till  a  comparatively  recent 
period  the  decision  of  the  Court  of  first  instance  was  final.  Now,  such  a 
reservation  may  be  taken,  as  this  had  been,  into  a  Court  of  Appeal,  and  I 
think  if  the  reservations  are  treated  by  the  Courts  of  Appeal,  not  as  special 
verdicts  used  to  be,  having  regard  to  technicalities,  but  as  justice  would 
seem  to  require,  having  regard  to  the  substance  of  what  really  took  place 
and  was  agreed  on  at  the  trial,  special  verdicts  will  fall  into  disuse  alto- 
gether. A  jury,  no  doubt,  has  tlie  physical  power  to  find  a  verdict  con- 
trary to  the  direction  of  the  judge,  but  if  tliat  is  done  it  is  wrong.  And 
when  leave  is  reserved  to  enter  a  verdict  according  to  what  is  ultimately 
determined  to  be  the  proper  direction  in  law,  it  is  on  the  supposition  that 
the  jurors  do  their  duty  and  follow  that  direction." 

I  will  add  a  short  passage  from  a  valuable  little  commentary  on  the 
procedure  in  jury  trials  in  civil  cases  by  a  Scotch  writer,  William  Adam, 
Lord  Chief  Commissioner  under  the  Act  of  Parliament  (.55  Geo.  III.  c.  42), 
which  first  introduced,  in  Scotland,  trial  by  jury  in  such  cases.  "  In  Eng- 
land," he  says,  "  the  course  of  proceeding  by  new  trial  to  correct  the  errors 
of  law  by  judges  presiding  at  trials  by  jury,  had  become  prevalent,  in 
consequence  of  the  proceeding  by  bill  of  exception  creating  inconvenience 
to  the  judges,  under  the  provisions  of  the  Statute  of  Westminster.  Be- 
sides, counsel  not  being  always  ready  with  their  exceptions  in  proper  form, 
trials  were  thereby  delayed  ;  a  serious  inconvenience  when  there  are  many 


244  LAW   OF   EVIDENCE. 

cedents  whicli  have  turned  upon  some  question  of  fact,  or 
some  limited  and  incidental  principle  of  procedure,  or  evi- 
dence, or  practical  sense,  have  come  to  stand  as  settling  the 
main  doctrine  of  substantive  law  involved  in  the  case. 
It  is  obvious,  on  reflection,  that  cases  may  import  a  very 
different  proposition  when  they  come  from  the  trial  court 
in  different  ways;  say,  for  example,  on  exceptions  to  a 
ruling  of  the  judge,  involving,  as  these  do,  a  dry  question 
of  law ;  on  a  motion  for  a  new  trial,  resting,  as  this  may, 
upon  many  different  grounds,  whether  of  law,  or  sound 
reason,  or  substantial  justice,  —  as,  that  a  particular  ruling 
of  the  judge  was  wrong,  or  that  there  was  no  evidence  to 
sustain  the  verdict,  or  that  it  was  against  the  weight  of 
evidence ;  or  on  a  rule  or  motion  for  a  nonsuit,  which,  in 
strictness,  asks  only  whether  the  plaintiff  had  any  case  at 
all,  or  any  evidence  at  all  to  go  to  the  jury;  or  on  a  special 
verdict  which  asks  only  for  the  opinion  of  the  court  on  the 
law  arising  out  of  these  specific  facts,  justly  interpreted,  — 
allowing  no  power  to  the  court  to  draw  inferences  of  fact ; 
or  on  a  case,  stated  by  agreement  of  the  parties,  which  asks 
the  same  question  as  that  last  named,  but  in  practice,  at 
any  rate,  and,  perhaps,  in  sound  theory,  permits  a  little 
more  freedom,  than  the  special  verdict  as  touching  infer- 
ences ;  ^  or  on  such  a  statement,  with  a  power  expressly 
conferred  on  the  court  of  drawing  such  inferences  as  a  jury 
might  draw,  or  accompanied  with  other  special  stipulations, 
such  as  that  the  j.udges  shall  pass  outright  on  the  title  or 
other  main  question  of  the  case;  or  on  a  case  tried  by  the 
court  witliout  n  jury,  as  in  the  Star  Chamber,^  in  equity, 

cases  to  try  at  a  sitting  or  circuit.  To  avoid  such  inconveniences,  it  was 
natural  that  both  judges  and  counsel  should  jjrcfer  proceeding  hy  motion 
for  new  trial,  by  si)ecial  case,  or  by  reserving  the  disputed  point  of  law  to 
be  decided  in  the  term  ;  the  verdict  to  be  entered  according  to  tlic  opinion 
of  the  court  upon  the  point  reserved." —  A  Prnrtlral  Treatise  and  Ohserva- 
tlnna  on  Trial  In/  Juri/  in  Civil  Causes,  by  William  Adam.  Edinburgh, 
Thomas  Clark,  18;J6. 

1  hi/rn,  247  n. 

2  For  examples,  Twync's  case,  3  Co.  80b,  a  source  of  much  confusion. 


LAW  AND  FACT   IN  JURY   TRIALS.  245 

and  in  many  cases  at  law  in  modern  times,  where  utter- 
ances on  questions  of  fact  are  so  easily  confounded  with 
rulings  on  a  point  of  law.  And  yet  nothing  is  commoner, 
in  opinions  of  courts,  in  arguments  of  counsel,  and  in  trea- 
tises, than  overlooking  all  such  distinctions,  and  treating 
the  deliverances  of  the  courts  in  those  different  cases,  as 
of  similar  import  and  of  equal  weight,  without  any  regard 
to  the  utterly  different  point  which  may  have  been  really 
under  consideration. 

It  has  followed  from  this,  not  only  that  cases  are  cited 
every  day  for  propositions  of  substantive  law  not  decided 
by  them,  and  when  they  are  equally  consistent  with  the 
contrary  proposition,  but  also  that  matters  of  fact,  prop- 
erly, or  perhaps  carelessly,  passed  upon  by  the  courts 
are  subsequently  treated  as  thereby,  because  handled  by 
a  judge,  made  the  subject  of  a  rule  of  law.  For  instance, 
in  a  case  ^  where  the  plaintiff's  agent  had  drawn  up  and 
handed  to  the  defendant  a  memorandum  of  a  sale  of  goods 
to  the  defendants,  in  which  the  names  of  both  parties 
occurred,  the  general  question  was,  whether  within  s.  17 
of  the  English  Statute  of  Frauds,  under  the  special  cir- 
cumstances of  the  case,  the  name  of  the  defendant  was 
signed  by  his  authority,  or  whether  the  paper  was  merely 
an  invoice  made  in  behalf  of  the  plaintiff.  By  consent,  a 
verdict  was  found  for  the  plaintiff,  and  leave  was  reserved 
to  move  to  enter  a  verdict  for  the  defendant  or  a  nonsuit. 
On  a  rule  to  that  effect,  the  Court  of  Exchequer  made  the 
rule  absolute  for  a  nonsuit.  The  Exchequer  Chamber 
reversed  the  judgment  and  discharged  the  rule,  on  the 
carefully  stated  ground  that  the  form  of  this  rule  pre- 
sented to  them  only  the  question,  whether  a  jury  could  have 
found  for  the  plaintiff.  Crompton,  J.,  said:  "We  think 
that  there  was  evidence  (and  that  is  the  only  point  on 
which  we  differ  from  the  court  below)  that  Noakes  was 
intended  by  the  defendant  as  well  as  the  plaintiff  to  make 
a  record  of  the  contract.  .   .   .  My  brother   Willes  enter- 

1  Durrell  v.  Evans,  1  H.  &  C.  174  j  s.  c.  31  L.  J.  Ex.  337. 


246  LAW   OF   EVIDENCE. 

tains  a  strong  view  the  same  way;  and  indeed  I  believe 
he  is  of  opinion  not  only  that  there  was  evidence  to  go  to 
the  jury,  but  that  the  verdict  ought  to  have  been  for  the 
plaintiff."  The  other  judges  limited  themselves  as  Cromp- 
ton  did.  Blackburn,  J.,  said:  "I  cannot,  as  a  matter  of 
coiu'se,  look  at  this  instrument  ...  as  intended  only  as 
the  vendor's  account.  Perhaps  I  should  draw  the  infer- 
ence that  it  was;  but  it  is  impossible  to  deny  that  there 
was  plenty  of  evidence "  the  other  way.  Doubtless  in 
deciding  such  a  case  there  is  a  certain  amount  of  discus- 
sion and  recognition  of  general  legal  principles.  But 
when  this  case  comes  to  be  cited  for  the  proposition  that 
"an  instrument. so  drawn  as  to  recognize  the  obligation, 
though  not  for  that  special  purpose,  will,  if  it  be  delivered 
to  the  other  party  and  accepted  by  him,  suffice  for  a 
memorandum  under  the  statute,^  we  observe  at  once 
that  it  is  overstated;  instead  of  saying  "will  suffice,"  the 
case  cannot  be  put  higher  than  "may  suffice."  ^ 

1  Browne,  Stat.  Fr.  5th  ed.  s.  354. 

2  Similar  remarks  are  applicable  to  such  a  ease  as  Bakley  v.  Parker,  2 
B.  &  C.  37,  cited  gcDerally  as  the  leading  case  for  the  ill-founded  doctrine, 
under  section  17  of  the  English  Statute  of  Frauds,  that,  wliere  a  party- 
makes  several  purchases  at  a  shop,  for  different  prices,  and  has  a  bill  for 
the  whole  of  them,  if  each  separate  parcel  costs  less  than  £10,  but  all 
together  cost  more,  it  is  covered  by  the  statute  ;  as  to  which  see  Bailey  v. 
Sweeting,  9  C.  B.  n.  s.  843;  Leake,  Cout.  140;  ib.  Dig.  Cont.  258;  Young 
Mfg.  Co.  V.  Wak(  field,  121  Mass.  91  ;  Mills  v.  Hunt,  20  Wend.  431 ;  Roots 
V.  Dormer,  4  B.  &  Ad.  77 ;  Jenness  v.  AVeudell,  51  N.  H.  63.  So,  also,  in 
tlie  famous,  much  misused  case  of  Morton  r.  Tibbett,  15  Q.  B.  428,  the 
whole  scope  of  the  decision  was  truly  indicated  by  the  Chief  Justice  in 
stating  the  question  :  "  In  this  case  the  question  submitted  to  us  is,  whether 
there  was  any  evidence  on  which  the  jury  could  be  justified  in  finding  that 
the  buyer  accepted  the  goods  and  actually  received  the  .same,"  etc.  But, 
whether  from  the  crude  and  confused  discussion  in  the  o))inion  itself,  or 
from  the  carelessness  of  later  judges  and  text-writers,  this  case  came  to 
stand  for  very  loose  doctrines  of  substantive  law,  and  at  last  to  work  per- 
manent and  almost  irremediable  miscliief.  On  the  mistaken  authority  of 
thi.s  case  a  novel  doctrine  was  imported  into  the  English  law,  through  one 
or  two  later  cases  (Kibl)le  v.  Gough,  38  L.  T.  11.  204,  1878;  Page  v.  Mor- 
gan, 15  Q.  B.  D.  228,  1885) ;  and  then,  unfortunately,  before  thei  correct- 


LAW  AND   FACT   IN  JURY  TRIALS.  247 

By  means,  then,  of  these  natural  and  convenient  arrange- 
ments of  common  law  procedure,  questions  of  fact  are 
often  submitted  to  the  judges  by  consent  of  the  parties. 
It  will  easily  be  seen  how  propositions  may  be  laid  down 
by  judges,  in  such  cases  as  these,  where,  by  consent,  they 
are  playing  the  part  of  a  jury  and  are  stating  the  consid- 
erations governing  them  as  jurymen,  which  ought  not  to 
pass  into  the  books  as  rules  of  law.  But  very  often  the 
peculiar  nature  of  these  cases  is  overlooked,  and  what  is 
really  the  utterance  of  a  bench  of  jurymen  is  cited  as  if 
it  were  the  judgment  of  a  court.  ■^ 

ing  forces  of  the  common  law,  which  had  begun  to  operate  (Taylor  v. 
Place  [1893],  2  Q.  B.  65),  could  fully  deal  with  the  matter,  this  error  was 
incorporated  into  a  codification  of  the  law  of  sale,  wliich  Parliament  too 
hastily  enacted.     Sale  of  Goods  Act;  St.  56  &  57  Vict.  c.  7   (1894). 

1  Some  cases  may  be  added  which  will  illustrate  what  is  here  said  as 
to  the  different  ways  of  bringing  a  case  up,  and  the  importance  of  remark- 
ing the  exact  way  in  which  the  question  for  the  court  has  been  shaped. 
Collins  V.  Waltham,  151  Mass.  136;  Cochrane  v.  Boston,  1  Allen,  480;  For- 
syth V.  Hooper,  11  Allen,  419 ;  Jenner  v.  Smith,  L.  R.  4  C.  P.  270 ;  Parker 
V.  Wallis,  5  El.  &  Bl.  21  ;  Goddard  v.  Binney,  115  Mass.  450 ;  Pickering  v. 
Busk,  15  East,  78  ;  Shepherd  v.  Harrison,  L.  R.  4  Q.  B.  196  ;  and  on  appeal 
lb.  498,  and  L.  R.  5  H.  L.  116,  (compare  Stat.  17  &  18  Vict.  c.  125,  s.  32); 
Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  508  ;  Mirabita  v.  Imp.  Ottom.  Bk.,  3 
Ex.  D.  164 ;  Wilmshurst  v.  Bowker,  2  M.  &.  G.  792,  and  on  app.  7  ib.  882  ; 
Smith  V.  Hud.son,  6  B.  &  S.  431  ;  Suydam  u.  Williamson,  20  Howard,  427. 

As  regards  the  convenient  practice  of  carrying  up  a  case  with  power  to 
the  upper  court  to  draw  inferences  of  fact,  it  was  said  by  Tindal,  C.  J., 
in  1833  that  "  It  is  a  practice  amongst  us  of  a  very  recent  origin.  I 
much  question  whether  any  instance  can  be  found  at  an  earlier  period 
than  ten  years  back."  Bayley,  J.,  at  about  the  same  time,  having  also 
been  consulted  on  the  subject  by  the  Scottish  Lord  Commissioner  Adam 
remarked :  "  Of  late  years,  practically,  an  incorrect  and  slovenly  mode 
has  been  adopted  of  leaving  it  to  the  court  to  draw  such  inferences  as 
the  court  shall  think  the  jury  ought  to  have  drawn."  Adam,  Ti-ial  by 
Jury,  390,  392.  Both  of  these  judges  expressed  approval  of  the  views 
communicated  to  them  by  the  Lord  Commissioner  as  to  the  identity,  in 
legal  effect,  of  .special  cases  and  special  verdicts,  and  as  to  the  theoretical 
incapacity  of  the  court  in  either  case,  unless  expressly  authorized,  to  draw 
inferences  of  fact.  But  the  practice  of  expressly  allowing  the  court  to 
draw  such  inferences,  in  the  special  case,  has  always  continued,  and  some 


248  LAW   OF   EVIDENCE. 

Returning  now  from  these  long  wanderings,  it  seems 
plain  tliat  the  doctrine  of  our  conimon  law  system  which 

power  of  doing  tliis,  eveu  where  it  was  not  expressly  given,  has  been 
recognized  by  high  authority.  Earon  Parke  repeatedly  allowed  it,  and  in 
doing  so  I  can  hardly  doubt  that  he  represented  truly  the  actual  habit 
of  the  judges,  whether  wholly  conscious  of  it  or  not.  Lord  Blackburn's 
intimations  on  this  general  subject  will  have  been  noticed  (supra,  243  n.), 
where  he  speaks  of  a  real  difference  in  practice  between  the  mode  of 
handling  a  special  verdict  and  a  case  reserved,  and  of  the  importance 
of  maintaining  the  difference.  In  the  King  v.  Leake,  5  B.  &  Ad.  469, 
Baron  Parke  (then  Parke,  J.),  in  dealing  with  a  case  stated,  said:  "If 
this  were  a  special  verdict  I  should  have  thought  that  both  these  facts 
[not  expressly  stated]  should  have  been  found  by  the  jury,  and  that  a  vcnir-e 
de  noro  was  necessary ;  but  on  a  special  case  we  are  not  so  strictly  bound, 
and  I  do  not  think  that  we  ought  to  put  the  parties  to  the  expense  of  a  new 
trial  on  that  account."  And  so  Parke,  J.,  in  Martindale  v.  Booth,  3  B.  & 
Ad.  498,  506,  and  Littledale,  J.,  in  Bailey  v.  Culverwell,  3  B.  &  Ad.  448, 
455.  A  marked  case  was  Tancred  v.  Christy,  12  M.  &  W.  316,  324,  in  the 
Exchequer  Chamber.  Below,  it  had  been  argued,  in  9  M.  &  W.  438,  on  a 
special  case.  Liberty  had  been  reserved  to  turn  this  special  case  into  a 
special  verdict,  in  order  —  having  regard  to  the  fact  that,  at  this  period, 
the  special  case  was  no  part  of  the  record  —  to  be  able  to  carry  the  case 
on  appeal  to  an  upper  court.  When  it  went  up  we  find  the  court  declar- 
ing that  it  was  open  to  the  court  below  to  find  certain  facts,  which  this 
court  cannot  find.  "The  argument  below,"  said  Tindal,  C.  J.,  "was  on 
a  case  reserved  and  not  on  a  special  verdict.  So  that  the  court  was  at 
liberty  to  draw,  and  did  draw,  inferences  of  fact.  We  cannot."  And 
for  that  reason  they  ordered  a  venire  de  novo.  Compare  Cole  v.  North- 
western Bank,  L.  K.  10  C.  P.  354  (Ex.  Ch.  1875),  Blackburn,  J. :  "  This 
is  a  special  case.  ...  It  did  not,  as  originally  drawn,  give  express  power 
to  the  court  to  draw  inferences  of  fact ;  l)ut  on  that  being  pointed  out 
during  the  argument,  it  was  agreed  that  it  was  so  intended,  and  that,  if 
necessary,  an  amendment  should  be  made  to  give  that  power." 

'i'he  same  doctrine,  in  a  very  unqualified  form,  was  laid  down,  at  com- 
mon law,  in  Now  Yfirk.  In  Jolinson  v.  Whitbeck,  in  a  special  case,  6  Cowen, 
6.'!l',  n.'il,  the  court,  Sullicrlaiul,  J.,  said:  "The  verdict  being  subject  to 
the  opinion  of  tlio  court,  we  are  substituted  for  the  jury,  and  have  the  right 
to  draw  the  same  conclusions  from  the  testimony  which  the  jury  in  the 
opinion  of  the  court  would  have  been  autliorized  to  draw."  And  so  in 
Whitney  i-.  Sterling,  14  Johns  215,  217.  In  a  case  submitted  under  the 
Code,  the  contrary  is  held  in  Clark  v.  Wise,  46  N.  Y.  612.  And,  doubt- 
les.i,  the  more  usual  .stateinont  of  the  common-law  doctrine  is  to  the 
cdiitrarv;    as    in    .Massiicliusctts,   in    Schwarz   v.  Boston,   151    Mass.  226. 


LAW  AND   FACT  IN  JURY   TRIALS.  249 

allots  to  the  jury  the  decision  of  disputed  questions  of 
ultimate  fact,  is  to  be  taken  with  the  gravest  qualifica- 
tions. Much  fact  which  is  part  of  the  issue  is  for  the 
judge ;  much  which  is  for  the  jury  is  likely  to  be  absorbed 
by  the  judge,  "whenever  a  rule  about  it  can  be  laid 
down;"^  as  regards  all  of  it,  the  jury's  action  may  be 
excluded  or  encroached  upon  by  the  co-operation  of  the 
judge  with  one  or  both  of  the  parties;  and,  as  regards  all, 
the  jury  is  subject  to  the  supervision  of  the  judge,  in 
order  to  keep  it  within  the  limits  of  law  and  reason. 

Before  passing  from  questions  of  fact,  let  me  turn 
again  for  a  moment  to  that  class  of  what  are  called 
"mixed  questions  of  law  and   fact,"  such  as   negligence. 

Compare  Cochrane  v.  Boston,  1  AlleH,  480;  Keeganu.  Cox,  116  Mass.  289; 
Old  Col.  R.  R.  Co.  V.  Wilder,  137  Mass.  .536;  Mayhcw  v.  Durfee,  138  ib. 
584.  Yet  it  may  reasonably  be  thought,  as  was  intimated  above,  that  in 
actual  practice  there  is  less  precision  than  such  statements  would  indicate. 
Even  in  dealing  with  special  verdicts,  there  is  always,  of  necessity,  the 
duty  of  interpreting  the  verdict;  and  that  shades  off  imperceptibly  into 
the  process  of  supplying  inferences  from  general  experience.  See,  e.  g., 
Plummer's  case  (12  Mod.  27,  s.  c.  Kel.  (old  ed.)  109),  and  the  reasoning 
there  as  to  what  is  a  sufficient  foundation  for  a  legal  intendment.  And 
so,  when  we  come  to  dealing  with  the  case  stated,  we  find  a  sort  of  neces- 
sary qualification  such  as  this  :  "  Unless  upon  such  facts,  with  the  inevita- 
ble inferences,  or,  in  other  words,  such  inferences  as  the  law  draws  from 
them,  a  case  is  made  out,"  etc.  etc.  Morton,  C.  J.,  in  O.  C.  R.  R.  Co.  r. 
AVilder,  uhi  supra.  The  principles  applicable  to  a  verdict,  the  finding  of 
the  tribunal  which  alone  has  the  authority,  ordinarily,  to  find  the  fact.s, 
do  not  fully  apply  to  a  special  case.  This  always  imports  an  agreement 
of  the  parties ;  and  tlie  court  may  properly  regard  the  apparent  jnirpose 
of  the  parties  in  presenting  their  case,  and  may  govern  their  action  hy 
considering  the  questions  wliich  the  parties  apparently  intended  to  raise. 
In  principle,  however,  tliis  power  must  be  a  narrow  one.  It  may  well  be 
doubted  whether  any  court,  not  expre.ssly  authorized  to  do  it,  can  deal 
with  the  facts  in  an  agreed  statement  as  freely  as  a  jury  may.  Some 
slight  and  guarded  power  of  drawing  inferences  of  fact  is  all  that  can 
fairly  be  claimed  in  such  a  case,  on  any  sound  principle.  Such  a  power 
may  be  claimed. 

1  Tindal  v.  Brown,  1  T.  R.  167,  per  Lord  Mansfield  ;  Holmes'  Com.  Law, 
122-9. 


250  LAW  OF  EVIDENCE. 

which  are  nowadays  referred  to  the  jury.  We  have 
found  no  occasion  to  speak  of  them  as  anything  other 
than  mere  matters  of  fact.  The  circumstance  that  in 
order  to  deal  with  them  it  is  necessary  to  know  what  the 
legal  definition  is,  does  not  really  affect  the  matter;  nor 
that  the  definition  is  more  or  less  difiBcult  to  apply. ^  It  is 
sometimes  necessary  that  the  jury  should  be  advised  as  to 
tlie  ordinary  definitions  of  the  dictionaries;  but  this  is 
needed  only  to  give  precision  to  their  inquiry ;  it  does  not 
alter  the  nature  of  it.  So  of  any  legal  definition.'  The 
meaning  of  "burning,"  in  the  law  relating  to  arson,  is  a 
highly  technical  one ;  and  so  of  "breaking  and  entering," 
in  burglary;  because  a  definition  must  be  given,  is  it  any 
the  less  a  simple  question  of  fact  whether  an  accused 
person  has  burned,  or  broken  and  entered  a  given  house  ? 
And  so  of  such  questions  as  title  to  property,  or  insanity. 
Equally,  where  the  courts  or  statutes  have  fixed  the  legal 
standard  of  reasonable  conduct,  e.  g.,  as  being  that  of  the 
prudent  man,  and  have  no  exacter  rule,  the  determination 
of  whether  any  given  behavior  conforms  to  it  or  not  is 
a  mere  question  of  fact.^  It  is  not  a  question  of  law; 
because  there  is  no  rule  in  question.  Tliat  in  reach- 
ing their  conclusion  the  jury  must  reason,  and  must 
"judge  the  facts,"  is  not  material,  as  we  have  already 
seen;  always   they   must   do   that;  the   difference  in  this 

1  See,  for  example,  People  w.  Hawkins,  109  N.  Y.  411  ;  Pearce  v.  Lans- 
(lowne,  69  L.  T.  Poj).  316.     Supra,  22.5. 

'^  Eaton  )'.  Soutliby,  Willes,  131  ;  McLanahan  ?•.  Univ.  Ins.  Co.,  1  Peters, 
170,  186  ;  Ilaskins  v.  Ham.  Co.,  5  Grav,  432  ;  and  as  to  some  similar  mat- 
ters compare  Story,  J.,  for  tlie  court,  in  McLanahan  v.  Tlie  Universal  Ins. 
Co.,  1  Peters,  170,  184  (1828):  "  Wliat  is  a  competent  crew  for  the  voyage ; 
at  what  time  sucli  crew  slionld  he  on  board  ;  wliat  is  pro])er  pilot  ground  ; 
what  is  the  conr.se  and  usage  of  trade;  in  relation  to  the  master  and  crew 
being  on  board  wlion  the  ship  breaks  ground  for  the  vo3'age,  —  are  questions 
of  fact,  dependent  uimn  nautical  testimony,  and  are  incapable  of  being 
solved  by  a  court,  without  assuming  to  itself  the  province  of  a  jury,  and 
judicially  relying  on  its  own  skill  in  maritime  affairs."  Irwin  v.  Williar, 
110  U.  S.  499. 


LAW  AND   FACT   IN  JURY   TRIALS.  251 

respect  between  these  cases  of  reasonableness  and  others  is 
simply  one  of  more  or  less.^  It  is,  indeed,  to  be  recog- 
nized, as  we  have  seen,  that  such  questions  become,  from 
time  to  time,  the  subject  of  more  specific  legal  rule  or 
definition,  as  in  the  case  of  notice  of  the  dishonor  of  a 
bill  of  exchange. 2  But  where  that  has  taken  place,  all 
that  has  happened  is  a  change  in  the  legal  rule;  the  rule 
of  "reasonableness"  is  either  displaced  or  narrowed. 
When  once  the  exacter  rule  is  known,  what  is  left  to  be 
ascertained,  in  order  that  the  rule  may  be  applied,  is  none 
the  less  a  mere  question  of  fact. 

A  remark  of  Austin  on  this  subject  has  been  already 
referred  to.  He  said :  ^  "  What  can  be  more  indefinite 
.  .  .  than  the  expressions  reasonable  time,  reasonable  no- 
tice, reasonable  diligence  ?  .  .  .  The  difficulty  .  .  .  arises 
from  the  vagueness,  or  indefiniteness  of  the  terms  in  which 
the  definition  or  rule  is  inevitably  conceived.  And  this, 
I  suppose,  is  what  people  were  driving  at  when  they  have 
agitated  the  very  absurd  inquiry  whether  questions  of 
this  kind  are  questions  of  law  or  of  fact.  The  truth  is 
that  they  are  questions  neither  of  law  nor  of  fact.  .  .  .  The 
difficulty  is  ...  in  determining  not  what  the  law  is,  or 
what  the  fact  is,  but  whether  the  given  law  is  applicable 
to  the  given  fact."  In  this  passage  the  matter  seems  to  be 
dealt  with  too  shortly.  In  such  cases  not  only  is  it  true 
that  the  tribunal,  jury  or  court,  has  occasion  to  "  judge  the 
evidence,"  and  to  resort,  in  doing  so,  to  its  fund  of  gen- 

1  Vaughan,"C.  J.,  in  Bushell's  case  (Vaughan,  p.  142),  in  speaking  of 
the  ordinary  sort  of  question,  says  :  "  The  verdict  of  a  jury  and  evidence 
of  a  witness  are  very  different  things  in  the  truth  and  falsehood  of  them. 
A  witness  swears  but  to  what  .  .  .  hath  fallen  under  his  senses.  But  a 
juryman  swears  to  what  he  can  infer  and  conclude  from  the  testimony  of 
such  witnesses  by  the  act  and  force  of  his  understanding  to  be  the  fact 
incjuired  after,  which  differs  nothing  in  the  reason,  though  much  in  the 
punishment,  from  what  a  judge,  out  of  various  cases  considered  by  him, 
infers  to  be  the  law  in  the  question  before  him." 

2  Supra,  21.5,  226. 

^  Jurisprudence,  vol.  i.  236  (ed.  1873). 


2'j2  law  of  evidence. 

era!  experience,  but  also  it  must,  as  Austin  says,  apply 
the  law  to  the  facts.  That  function,  it  is  true,  whenever 
the  facts  and  all  just  inferences  of  fact  are  once  ascer- 
tained, belongs,  in  strictness,  to  the  court;  and  if,  at  the 
outset,  both  sides  admit  all  these  things,  there  is  nothing 
for  a  jury  to  do.  In  such  a  case  the  questions  raised  in 
the  application  of  the  law  to  the  facts  are  questions  of  law; 
namely,  (1)  whether  there  be  any  rule  of  law  applicable 
to  these  facts,  any  legal  consequences  attached  to  them, 
or  any  legal  implications  involved  in  them;  and  (2)  if  so, 
what  ?  But  until  they  are  fully  known,  the  occasion  for 
applying  the  law  to  them  has  not  arisen.  And  whenever 
a  jury  has  to  be  called  in  to  ascertain  the  facts,  that  body 
has,  almost  always,  the  right  to  give  a  general  verdict, 
compounded  of  law  and  fact;  and  so,  subject  to  the  in- 
structions of  the  court,  adapted  beforehand  to  different 
suppositions  and  contingencies,  and  subject  also  to  the 
court's  revision  of  their  action,  it  is,  in  fact,  ordinarily, 
the  jury  that  has  the  application  of  the  law  to  the  facts. 
So  that,  in  this  respect  also,  there  is  nothing  essentially 
peculiar  in  this  class  of  cases.  When  the  rule  of  law  is 
expressed  in  a  form  that  takes  up  into  itself  a  non-legal 
standard,  as,  in  laying  down  for  a  rule  of  reasonableness, 
tlie  test  of  what  a  prudent  man  would  do  in  any  given 
circumstances,  obviously,  before  the  rule  can  be  applied, 
this  question  of  what  such  a  man  would  do  has  to  be 
answered,  — a  question  of  fact,  a  question  for  which  there 
is  no  legal  test;  and  that  question,  when  part  of  the  issue, 
is  i)roperly  for  the  jury.^  In  determining  reasonable  and 
probable  cause  in  actions  for  malicious  prosecutions,  as  we 
see,  it  has  been  retained  by  the  courts ;  ^  but  whenever 
such  questions  do  go  to  the  jury,  the  application  of  the 
nile  of  law  also  falls  to  their  lot,  for  the  reason  that  this 
process  must  await  their  determination  u])on  dis])uted 
facts,  and  beoause.it  is  their  riglit,  a,t  common  law,  here  as 
clscnvlicrc,  to  give  a  general   vcirdict. 

1  Supra,  228.  -  Supra,  221. 


LAW   AND   FACT  IN  JURY   TRIALS.  253 

It  seems,  therefore,  to  be  true,  notwithstanding  Austin's 
remark,  that  questions  of  reasonable  conduct,  while  re- 
quiring a  "judgment"  of  the  evidence,  and  the  application 
of  the  rule  of  law  to  the  facts,  submit,  none  the  less,  to 
a  classification  as  questions  of  fact,  —  sometimes  fact  for 
the  court,  but  generally  fact  for  the  jury. 

VI.  As  to  the  other  aspect  of  the  maxim,  that  which 
excludes  the  jury  from  the  law,  the  rule  seems  to  be  in 
a  far  simpler  condition.  From  the  beginning,  indeed,  it 
was  perceived  that  any  general  verdict,  such  as  no  dis- 
seisin, or  not  guilty,  involved  a  conclusion  of  law,  and 
that  the  jury  did,  in  a  sense,  in  such  cases  answer  a  ques- 
tion of  law.  That  was  the  very  ground  of  some  of  the 
arrangements,  already  mentioned,  for  removing  from  them 
the  final  question.  Moreover,  in  many  criminal  cases 
their  verdict  could  not  be  controlled..  "  It  was  never  yet 
known,"  said  Pratt,  C.  J.,^  "that  a  verdict  was  set  aside 
by  which  the  defendant  was  acquitted  in  any  case  what- 
soever, upon  a  criminal  prosecution."  In  such  cases  the 
judge  could  not  govern  their  action;  he  could  simply  lay 
down  to  them  the  rule  of  law ;  and  this  it  was  their  duty 
to  take  from  him,  and  apply  it  to  the  fact.  Although  this 
might  be  their  duty,  yet  the  jury  had  the  final  power,  to 
find  the  law  against  the  judge's  instruction.  This  power, 
where  it  was  uncontrollable,  has  been  considered  by  some 
to  be  not  distinguishable  from  a  right;  and  it  is  not  at 
all  uncommon  to  describe  it  thus,  —  as  a  right  to  judge  of 
both  law  and  fact.^ 

Even  in  civil  cases  it  used  to  be  said,  in  this  country, 
that  the  jury  had  the  right  to  judge  of  the  law.  In  tlie  first 
trial  by  jury  at  the  bar  of  the  Supreme  Court  of  the  United 
States,  in  1794,  in  a  civil  case  in  which  the  facts  were  agreed, 
Chief  Justice  Jay  nevertheless  submitted  the  case  to  the 
jury,  and  said :  "  The  facts  comprehended  in  the  case  are 

1  King  V.  Jones,  8  Mod.  201,  at  p.  208  (1724);  but  see  siiprn,  175. 
^  Drake  i:  Tlie  State,  53  N.  J.  Law,  23,  a  case  of  criminal  libel. 


254  LAW   OF   EVIDENCE. 

agreed;  the  only  point  that  remains  is  to  settle  what  is  the 
law  of  the  land  arising  from  those  facts ;  and  on  that  point 
it  is  proper  that  the  opinion  of  the  court  should  be  given. 
It  is  fortunate  ...  to  find  the  opinion  of  the  court  unani- 
mous. ...  It  may  not  be  amiss  here,  gentlemen,  to  re- 
mind you  of  the  good  old  rule  that  on  questions  of  fact 
it  is  the  province  of  the  jury,  on  questions  of  law,  it  is 
the  province  of  the  court,  to  decide.  But  it  must  be 
observed  that  by  the  same  law  which  recognizes  this  reason- 
able distribution  of  jurisdiction,  you  have  nevertheless  a 
right  to  take  upon  yourselves  to  judge  of  both,  and  to 
determine  the  law  as  well  as  the  fact  in  controversy.  .  .  . 
We  have  no  doubt  you  will  pay  that  respect  which  is  due 
to  the  opinion  of  the  court.  .  .  .  But  still  both  objects  are 
lawfully  within  your  power  of  decision."-^  That  seems 
at  the  present  day  a  very  extraordinary  doctrine.  It  is, 
perhaps,  partly  explained  by  the  practical  difficulties  ex- 
isting at  that  period,  in  controlling  the  verdicts  of  juries 
in  trials  at  bar,  and  by  the  lack  of  learning  on  the 
bench. ^    Chief  Justice  Shaw,  in  an  historical  sketch  of  the 

^  Georgia  v.  Brailsford,  3  Dallas,  1. 

-  In  the  first  lecture  of  James  Wilson,  as  Professor  of  Law  in  the  col- 
lege of  Philadelphia,  in  1790,  he  remarks:  "In  many  courts  —  in  many 
respectahle  courts  within  the  United  States,  the  judges  are  not,  and,  for 
a  long  time,  cannot  be  gentlemen  of  professional  acquirements.  They 
may,  however,  fill  their  offices  usefully  and  honorably  .  .  .  notwithstand- 
ing. But  can  they  do  this,  without  a  reasonable  degree  of  acquaint- 
ance with  the  law  ?  ...  In  questions  of  law  the  jurors  are  entitled  to 
the  assistance  of  the  judges ;  but  can  the  judges  give  assistance,  without 
knowing  what  answers  to  make  to  the  questions  which  the  jury  may  pro- 
pose ?  Can  those  direct  others  who,  themselves,  know  not  the  road." 
Wilson,  Works  (Amlrows  ed.),  i.  10. 

Wilson  was  at  this  time  a  judge  of  tlie  Supreme  Court  of  the  United 
States,  and,  as  snch,  took  j)art  in  the  trial  of  Georgia  v.  IJrailsford.  In 
a  lecture  which  appears  to  iiave  been  delivered  in  1791-2,  after  laying  it 
down  tliat  law  is  for  the  court,  wiiere  it  can  be  separated  from  the  fact, 
but  when  it  is  "  inse])arably  blemled  "  witJi  tlie  question  of  fact,  the 
judges  mu.st  inform  the  jury  of  the  law,  and  tlie  jury  "  must  pay  much 
regard  to  the  information,"  lie  adds:  "  P.nt  now  tlie  dilliculty  in  this  in- 
teresting subject  begins  to  press  upon  us.     Sujipo.so  that  .  .  .  a  difference 


LAW  AND  FACT  IN  JURY  TRIALS.  255 

older  practice  in  Massachusetts,^  in  speaking  of  the  way 
in  which  jury  trials  were  conducted  in  that  State,  for  a  cen- 
tury and  more,  previous  to  the  establishment  of  the  7iisi 
prills  system  in  1804,  says:  "During  this  period,  the  court 
was  held  for  all  purposes,  in  each  county,  by  a  full  bench. 
.  .  .  All  jury  trials  were,  in  effect,  trials  at  bar,  and  were 
conducted  in  the  presence  of  the  full  court,  and  not  less 
than  three  [a  majority  of  the  whole]  were  competent  to 
preside  at  a  jury  trial.  The  necessary  consequence  of  this 
practice  was,  that  the  members  of  the  court  were  not 
always  unanimous  in  their  opinions  upon  the  questions  of 
law  which  the  case  presented.  ...  It  not  unfrequently 
happened,  therefore,  that  several  different  members  of 
the  court  charged  the  jury  and  gave  them  conflicting  and 
contradictory  opinions  upon  points  of  law.  ...  It  fol- 
lowed as  almost  a  necessary  consequence  of  this  course  of 
proceeding,  that  a  verdict  must  be  conclusive.  .  .  .  When 
so  decisive  an  importance  was  attributed  to  the  verdict  of 
a  jury,  and  when  a  jury  in  effect  had  the  power  of  control- 
ling the  court  in  matters  of  law,  it  is  natural  to  believe," 
etc.^  It  appears  here  that,  in  such  cases,  what  was  meant 
by  speaking  of  the  right  of  the  jury  to  decide  the  law,  was, 
to  speak  exactly,  a  power  of  the  jury  which  it  was  prac- 
tically impossible  to  control. 

In  criminal  cases  like  expressions  have  frequently  been 

of  sentiment  takes  place  between  the  judges  and  the  jury,  with  regard  to 
a  point  of  law,  .  .  .  what  must  the  jury  do  ?  The  jury  must  do  their 
daty,  and  their  whole  duty  :  they  must  decide  the  law  as  well  as  the  fact." 
lb.  ii.  220.  The  doctrine  is  not  here  restricted  to  criminal  cases. '  The 
lecturer  remarks,  however,  that  it  is  "  peculiarly  applicable  to  criminal 
cases;  and  from  them,  indeed,  derives  its  peculiar  importance."  See 
Hawles,  Englishmen's  Riglit,  20,  21. 

1  Address  before  the  Bar  of  Berkshire  County,  Sept.  1830,  9  Pick.  566, 
569. 

2  The  same  state  of  things  formerly  existed  in  New  Hampshire.  Re- 
porter's Preface  to  55  N.  H.  Rep.  7.  For  this  and  other  illustrations  of 
the  subject  in  New  Hampshire,  I  am  referred  by  a  learned  friend  to  Mori- 
son's  Life  of  Chief  Justice  .Jeremiah  Smith,  pp.  165-166,  173,  and  to  the 
Life  of  Governor  William  Plumer,  p.  158. 


256  LAW   OF   EVIDE^'CE. 

uttered.  But  in  a  great  proportion  of  the  cases  they  were 
probably  intended  to  be  understood  in  a  sense  similar 
to  that  just  indicated,  — tliat  is  to  say,  they  were  modes 
of  expressing  the  doctrine  that  in  the  graver  criminal 
cases  an  acquittal  by  the  jury  is  final,  and  cannot  be  re- 
viewed on  any  ground,  wliether  of  law  or  fact.^  It  is 
probably  the  sound  view,  at  common  law,  that  this  power 
of  the  jury  in  criminal  cases  does  not  and  did  not,  in  any 
distinct  and  modern  sense,  import  a  right  on  their  part 
to  determine  the  law.  The  actual  adjustment  seems 
rather  to  belong  among  those  manifold  illogical,  but  yet 
rational  and  useful  results,  worked  out  in  the  course  of 
English  history,  in  all  parts  of  their  public  affairs,  by 
way  of  easing  up  the  rigor  of  a  strict  application  of  rules. 
And  such  was  the  conclusion  in  an  elaborate  recent  judg- 
ment of  the  Supreme  Court  of  the  United  States.  The 
doctrine  is  there  laid  down  that  the  jury  must  accept  the 
law  as  given  to  them  by  the  court.  ^ 

It  seems,  then,  that  whatever  be  the  power  over  ques- 
tions of  law  which  has  fallen  into  the  hands  of  juries,  in 
the  actual  working  of  our  legal  machinery,  yet  it  is  the 
duty  of  the  judges,  in  all  cases,  to  give  them  the  rule, 
and  their  duty  to  follow  the  rule  thus  ascertained.     We 

1  Siijirn.  175-179.  In  Louisiana,  where  the  constitution  makes  juries 
judges  of  law  and  fact  in  criminal  cases,  it  is  held  that  they  are  legally 
bound  to  take  the  law  from  the  court.  State  v.  Tisdale,  41  La.  An.  338. 
So  in  Tennsylvania,  Com.  v.  McManus,  14  Pa.  64. 

2  Si)arf  V.  U.  S.,  1.56  U.  S.  51.  The  contrary  view  was  maintained  in  a 
di.s.senting  o])inion  of  extraordinary  learning  and  great  ability  by  Gray,  J., 
spetiking  for  him,';elf  and  Sliiras,  J.  For  the  comments  of  the  court  on 
the  case  of  Georgia  v.  Hrailsford,  treating  it  as  an  anomaly  and  quoting 
Curtis,  J.,  as  doubting  the  accuracy  of  the  report,  see  ib.  64-65.  In  the 
dissenting  ojjinioii  tliat  case  is  di.scussed  and  the  autlienticity  of  the  report 
seems  to  l)e  vindicated  at  pp.  1.54-158.  See  a  remarkable  collection  of 
authorities  in  support  of  the  views  of  Gray,  J.,  in  a  note  to  Erving  v.  Cra- 
dock,  Qnincy's  Hc]).  55.3,  558-572,  —  understood  to  have  been  furnislied 
by  that  learncil  jmlge  wiien  at  tlie  b.ar.  Compare  1  Hishop  Cr.  I'rac,  3d 
od.  MS.  'J77,  'J83-'J8K  ;  2  Tlioni]).  Trials,  s.  21.33  ;  ricrco,  Life  of  Sumner,  i. 
330. 


LAW  AND  FACT  IN  JURY  TRIALS.  257 

may  still  quote  with  approval  Hargrave's  note  on  this 
subject  as  being  an  accurate  statement  of  the  common 
law.^ 

Before  leaving  the  grave  and  complex  subject  of  this 
chapter,  one  or  two  peculiar  situations  should  be  shortly 
mentioned. 

(1)  In  determining  the  law  of  the  domestic  forum, 
the  courts  settle  all  questions  relating  to  the  factum  of 
che  law,  e.  g.,  whether,  in  enacting  a  statute,  a  specific 
requirement  of  the  constitution  as  to  the  forms  of  enact- 
ment has  been  complied  with.  This  is  done,  it  would 
seem,  under  the  doctrine  of  judicial  notice,  or  an  analogous 
one;  as  the  judges  are  chargeable  with  knowledge  of  the 
law,  so  the  ascertaining  of  it  and  of  whatsoever  is  requi- 
site to  this  knowledge,  is  wholly  for  them.  Although,  in 
the  discussions  of  this  subject,  much  is  said  of  the  "best 
evidence"  and  "conclusive  evidence,"  it  seems  that  judges 
have  a  right  to  resort  to  any  helpful  source  of  infor- 
mation.^ As  regards  foreign  laws,  it  is  held  that  the 
question  of  their  existence  is  wholly  for  the  jury.  This 
is  said,  on  the  theory  that  such  laws  are  mere  matters 
of  fact;  and  so  of  the  questions  incidental  to  the  ascer- 
tainment of  them.  Now,  two  things  seem  to  be  true: 
(a)  that,   in  an  exact   sense,  these   last-named   questions 

1  Co.  Lit.  155  b,  note.  Compare  what  appears  to  Le  a  part  of  the  ver- 
batim charge  to  the  jury  in  Salisbury's  case,  Plowden,  101  (1553),  where 
after  laying  down  the  subtle  law  about  malice  in  murder,  the  court  ends 
"and  therefore  you  must  take  the  law  so."  In  the  French  original  of  the 
report  (ed.  1578)  it  reads,  et  pur  ceo,  preirjnez  le  ley  issint.  See  Lilburne's 
case,  4  Howell's  State  Trials,  1269,  1379,  1380. 

2  Gardner  v.  The  Collector,  6  Wall.  499,  511  ;  So.  Ottawa  v.  Perkins, 
94  U.  S.  260.  Questions,  in  such  cases,  as  to  the  finality  of  the  authentica- 
tion of  a  statute  by  officers  of  the  political  departments,  such  as  are  discussed 
in  Field  v.  Clark,  143  U.  S.  649,  seem,  in  reality,  to  be  directed  to  the 
scope  and  limitations  of  judicial  power,  and  to  what,  for  the  purpo.ses 
of  a  judicial  inquiry,  shall  constitute  a  statute.  The  question  is,  what  is 
the  true  point  wliere  judicial  inquiry  should  end.  Compare  French  c. 
Fyan,  93  U.  S.  169  ;  McCormick  v.  Hayes,  159  U.  S.  332. 

17   ' 


258  LAW   OF   EVIDENCE. 

are  questions  of  fact,  and  that  equally  the  same  ques- 
tions about  domestic  laws  are  questions  of  fact;  (b)  that 
if  the  factum  of  domestic  law  is  for  the  court,  equally 
the  factum  of  foreign  law  should  be,  — assuming  it  to  be 
true  that  it  is  wanted,  in  order  to  determine  the  rule  or 
law  of  the  case.  Such  law,  as  well  as  the  domestic  law, 
should  be  ascertained  by  the  judge.  The  circumstance 
that  while  the  domestic  law  does  not  need  to  be  proved 
by  evidence,  strictly  so  called,  foreign  law  must  be  so 
proved,  is  not  material.  In  reason  the  judges  might  well 
enough  be  allowed  to  inform  themselves  about  foreign 
law  in  any  manner  they  choose,^  just  as  the  judges  of  the 
Federal  courts  notice  without  proof  the  laws  of  all  the 
States.  But  if  it  is  required  to  be  proved,  it  should  be 
proved  to  the  judge. '^  The  doctrine,  however,  that  it  is 
for  the  jury  has  a  wide  acceptance;  and,  so  far  as  it  goes, 
if  this  is  not  a  qualification  of  the  general  principle  that 
the  jury  are  not  to  answer  to  law,  it  is  at  least  a  departure 
from  the  mode  of  applying  that  principle  in  the  case  of 
domestic  law;  for,  as  we  have  seen,  a  question  of  fact 
relating  to  law,  which  in  the  latter  case  is  attracted  to  the 
tribunal  that  deals  with  law,  in  the  other  case  is  not. 
Consistency  and  principle  would  give  the  last  case  also  to 
the  judges. 

(2)  Another  situation  may  be  mentioned.  The  relation 
of  the  judge  to  the  jury  is  often  necessarily  one  of  mutual 
assistance.  As  the  judges  give  the  jury  advice,  infor- 
mation, and  aid,  touching  the  jury's  special  province,  so 
they  call  upon  the  jury  for  assistance  in  determining  their 
own  questions.''     The  method  of  the  chancery  judges,  of 

1  It  was  jiulici.illy  noticed  in  State  v.  Rood,  12  Vt.  396. 

2  IMckanl  r.  Hailcy,  26  N.  II.  152  ;  Lockwood  v.  Crawford,  18  Conn.  361 
(hy  statnto);  So.  Ottawa  v.  Perkins,  94  U.  S.  260;  Story,  Confi.  Law.s, 
B.  638 ;  1  Grlf.  Kv.  8.  486. 

3  With  the  rule  correctly  laid  down  in  (lorton  v.  IladscU,  9  Gushing, 
f)\\,  l)y  Metcalf,  J. :  "  It  is  the  province  of  the  jndfje  who  presides  at  the 
trial  to  decide  all  rpiestions  as  to  the  adnii.«sil)ility  of  evidence.  It  is  also 
his  province  to  decide  any  j)reliininary  (luestion  of  fact,  however  intricate, 


LAW  AND  FACT  IN  JURY  TRIALS.  259 

referring  a  question  for  trial  to  a  common-law  jury,  in 
order  to  inform  and  aid  them,  giving,  however,  to  a  jury's 
verdict  such  weight  as  the  judge  thinks  best,  may  indicate 
the  nature  of  this  thing.  Questions  of  fact,  in  equity,  are 
for  the  judge,  but  he  profits  sometimes  by  the  advice  of  a 
common-law  jury;  and  the  same  thing  takes  place  in  com- 
mon law  courts  under  statutory  provisions;  "advisory 
verdicts"  are  called  for.'^  So  the  common  law  judge,  in 
construing  a  writing,  sometimes  asks  the  jury  for  the 
mercantile  meaning  or  understanding  of  it,  —  not  because 
it  is  intended  to  leave  to  them  the  decision  of  the  ques- 
tion, but  in  order  to  profit  by  their  opinion;  just  as  Lord 
Mansfield  and  others  built  up  the  commercial  law  by  tak- 
ing the  opinion  of  special  juries,  and  their  reports  as  to 
mercantile  usage,  and  founding  rules  of  presumption  upon 
them  when  they  appeared  to  be  reasonable.  To  aid  them 
in  the  construction  of  writings,  judges  may  well  have  the 
evidence  of  mercantile  experts.^  On  the  same  principle, 
they  may  take  the  opinion  of  a  special  jury;  and  may 
submit  to  the  jury  any  proper  question,  that  is  to  say,  any 
question  depending  upon  a  judgment  of  matters  which  the 
jury  may  fairly  be  supposed  to  know  more  about  than 
the  court.  In  such  cases,  also,  instead  of  first  receiving 
the  opinion  of  the  jury  and  then  deciding  the  point,  a  judge 
may,  of  course,  leave  the  question  to  them  with  contingent 
instructions,  e.  g.,  that  if  they  find  that  the  usage,  custom, 
understanding,  or  practice  of  merchants  is  so  and  so,  then 

the  solution  of  which  may  be  necessary  to  enable  him  to  determine  the 
other  question  of  admissibility  "  (and  so  Bartlett  v.  Smith,  11  M.  &  W  483), 
—  compare  a  more  or  less  common  judicial  practice  of  consulting  the  jury 
in  such  cases,  as  in  Bartlett  v.  Hoyt,  33  N.  H.  151,  155,  156;  Field  v. 
Tenney,  47  N.  H.  513,  521,  522;  Com.  v.  Piper,  120  Mass.  185,  188; 
and  Com.  v.  Culver,  126  Mass.  464,  466.  In  some  cases,  this  sort  of 
thing  is  mere  error,  and  not  at  all  an  instance  of  -what  is  mentioned  in 
the  text. 

1  Maier  v.  Lillibridge,  70  N.  "W.  Rep.  1032  (Mich.  April,  1897).      See, 
also,  Willeford  v.  Bell,  49  Pac.  Rep.  6,  7  (Cal.,  May,  1897). 

2  As  in  Pickering  v.  Barkley,  Style,  132. 


260  LAW   OF  EVIDENCE. 

they   sliall   find   so   and  so   as  to  the  interpretation  of  a 
certain  contract  or  a  certain  transaction.^ 

In  the  great  case  of  Lickbarrow  v.  Mason,  where  the 
respective  rights  were  brought  in  question  of  an  unpaid 
seller  of  goods,  and  of  one  who,  in  good  faith,  without 
notice  and  for  value,  had  bought  from  the  first  buyer, 
taking  an  indorsement  of  the  bill  of  lading,  —  after  the 
case  had  gone  to  the  House  of  Lords  on  a  demurrer  upon 
the  evidence,  and  had  been  sent  back  to  a  new  trial  for 
informality  in  the  demurrer,^  the  jury,  at  the  new  trial, 
in  accordance  with  the  judge's  request,  found  a  special 
verdict,  stating  the  facts,  and  adding  the  understanding 
and  custom  of  merchants  as  to  the  effect  of  certain  trans- 
actions. Thereupon  the  court,  "understanding  that  the 
case  was  to  be  carried  up,"  gave  judgment,  without 
reasons,  for  the  plaintiff,  who  represented  the  sub- 
vendee.^  The  case  was  settled,  and  was  never  carried 
up.  Now,  as  regards  the  law  upon  this  important  point, 
two  thirds  of  the  twelve  judges  who  had  been  concerned 
in  the  case  had  been  against  the  final  opinion  of  the 
King's  Bench,  the  one  which  accorded  with  the  famous 
advisory  opinion  of  Mr.  Justice  Buller  to  the  Lords.  Yet 
the  law  has  always  been  considered  as  settled  in  accordance 
with  the  pro  forma  judgment  in  the  King's  Bench,  fol- 
lowing the  opinion  of  merchants  as  given  in  the  special 
verdict.  "It  is  probable,"  says  Blackburn,  "that  the  find- 
ing of  the  jury  of  the  custom  of  merchants  had  great 
weight."*     The  true  significance  of  such  a  thing  as  this, 

^  An  illustration  of  this  is  fonnd  in  Ilawes  v.  Forster,  1  Moo.  &  Rob. 
368  ;  8.  c.  Williston,  Cases  on  Sales,  887. 

2  Not  (as  is  often  said,  even  by  judges)  by  reason  of  any  decision  on 
the  iiurita.  See  Lord  Blackburn's  exposition  of  this  case  in  Sowell  v. 
IJiinlick,  10  Appeal  Cases,  74. 

•'  f)  T.  R.  683. 

*  Sain,  288.  And  .so  Christian,  Bankruptcy  (ed.  1814),  ii.  406  :  "As 
the  dnciHion  of  the  Court  of  King's  Bench,  .  .  .  though  no  re.ason  was 
given,  scfniH  Ut  1)C  considered  the  present  law,  I  presume  it  arises  from 
the  finding  of  the  jury  that  the  property  in  the  goods  is  transferred  by  the 


LAW   AND  FACT  IN  JURY   TRIALS.  261 

inserting  in  the  verdict  the  understanding  and  custom  of 
merchants  on  a  question  of  doubtful  interpretation  as  to 
the  meaning  and  legal  result  of  certain  commercial  trans- 
actions, can  only  amount  to  a  mode  of  assisting  the  court 
by  the  judgment  of  experts.  The  court  may  follow  it, 
but  they  need  not;  it  is  not  a  determination  which  has 
any  binding  force ;  but  it  does  present  to  the  court  a  fact 
which  may  properly  weigh  with  them  in  reaching  a  con- 
clusion, just  as  the  judgment  of  an  expert  witness  presents 
to  a  jury  a  fact  which  may  properly  weigh  in  reaching 
their  own  independent  conclusion  upon  the  same  point. ^ 
The  value  of  a  knowledge  of  "the  custom  among  mer- 
chants "  in  interpreting  mercantile  contracts  and  trans- 
actions had  been  emphatically  recognized  by  Lord  Hard- 
wicke  a  generation  earlier;^  and  "the  want  of  any  recent 
evidence  as  to  the  usages  of  commercial  men  "  is  one  of 
the  difficulties  complained  of  in  the  House  of  Lords  in 
an  important  modern  case.** 

A  straightforward  look  at  this  sort  of  thing  is  taken  by 
Lord  Esher,  in  a  case  involving  the  construction  of  a 
policy  of  insurance.*  "Anything,"  he  says,  "more  in- 
blank  indorsement  and  transmission  of  the  bill  of  lading."  Regarding  it 
as  an  original  question,  both  Blackburn  and  Cliristian  agree  with  the 
opinion  of  Lord  Loughborough  and  the  majority  of  the  judges,  as  against 
Mr.  Justice  Buller  and  his  court. 

1  Compare  the  note  of  the  American  editor  of  East's  reports  at  the 
statement  in  King  v.  Nicols,  13  East,  411  n  ,  that  "  this  special  verdict  was 
removed  here,"  etc.  :  "  This  was  not  a  special  verdict,  properly  so  called, 
but  rather  a  special  finding  of  a  particular  fact,  as  a  guide  to  the  judgment 
of  the  court  whether,  taking  the  particular  fact  to  be  as  stated  by  the  jury, 
they  were  warranted  by  the  evidence  in  finding  a  general  verdict  of  guilty." 

^  Ekins  V.  Macklish,  Ambler,  184  (1753)  ;  Kruger  v.  Wilcox,  ib.  2.52 
(175.5)  ;  Godfrey  v.  Furzo,  3  P.  Williams,  185,  187  (1733).  And  so  in  the 
common-law  courts,  Fearon  v.  Bowers,  1  H.  Bl.  364  n. ;  and  a  hundred 
years  before  that,  Pickering  v.  Barkley,  Style,  132. 

3  Glyn  &  al.  v.  E.  &  W.  I.  Dock  Co.,  7  App.  Cas.  591  (1882),  per  Lord 
O'Hagan. 

*  Stewart  v.  Merchants'  Mar.  Ins.  Co.,  16  Q.  B.  D.  619,  627 ;  s.  c.  34 
W.  R.  208,  210. 


262  LAW  or  EVIDENCE. 

formal,  inartistic  or  un grammatical  than  those  policies 
or  charter  parties  cannot  be  fonnd,  and  until  recentl}^ 
whenever  a  point  arose  as  to  their  meaning  our  judges 
almost  invariably  took  the  opinion  of  the  jury  upon  the 
question.  They  did  not  merely  take  the  evidence  of  cus- 
tom, they  asked  juries  what  their  view  of  the  contract 
was,  and  I  myself  should  have  been  prepared  to  take  the 
opinion  of  a  jury  on  this  point  as  a  matter  of  business. 
It  is  said  that  there  is  this  difficulty,  that  it  would  be 
necessary  to  take  the  evidence  of  average  adjusters,  and 
that  these  adjusters  have  proclaimed  that  they  do  not  act 
upon  any  customs  of  merchants,  but  that  they  endeavor 
to  follow  the  law.  But  I  should  have  suggested  that  mer- 
chants should  also  be  called  as  witnesses,  and  that  the  jury 
should  decide  after  having  heard  the  whole  evidence." 

The  simple  truth  in  such  cases  appears  to  be,  that  the 
court,  whether  or  not  they  be  quite  ready  as  yet  to. adopt 
the  opinion  which  they  ask,  as  giving  the  legal  rule,  are 
wishing  to  know  that  opinion,  as  an  aid  to  them,  in  laying 
down  the  law.^ 

1  Compare  Evans,  Decisions  of  Lord  Mansfield,  ii.  338,  note  {m). 


LEGAL  REASONING.  263 


CHAPTER   VI. 

THE   LAW  OF   EVIDENCE;   AND   LEGAL  REASONING  AS 
APPLIED   TO   THE   ASCERTAINMENT   OF   FACTS. 

1.  What  is  our  Law  of  Evidence  ?  It  is  a  set  of  rules 
and  principles  affecting  judicial  investigations  into  ques- 
tions of  fact ;  for  the  most  part,  controverted  questions.  It 
is  concerned  with  the  operations  of  courts  of  justice,  and 
not  with  ordinary  inquiries  in  ^.»c/is  ;  and  even  within  this 
limited  range,  it  does  not  undertake  to  regulate  the  pro- 
cesses of  reasoning  or  argument,  except  as  helping  to  dis- 
criminate and  select  the  material  of  fact  upon  which  these 
are  to  operate;  these  processes  themselves  go  on,  after 
their  own  methods,  even  when  all  thie  "evidence"  is  in, 
or  when  there  is  none  and  all  the  facts  are  admitted. 
They  are  the  same  which  take  place  in  questions  of  law 
upon  a  demurrer,  — those  of  mere  reasoning.  But  when 
one  offers  "evidence,"  in  the  sense  of  the  word  which  is 
now  under  consideration,  he  offers,  otherwise  than  by 
reference  to  what  is  already  known,  to  prove  a  matter  of 
fact  which  is  to  be  used  as  a  basis  of  inference  to  another 
matter  of  fact.  He  offers,  perhaps,  to  present  to  the  senses 
of  the  tribunal  a  visible  object  which  maj''  furnish  a  ground 
of  inference;  or  he  offers  testimony,  oral  or  written,  to 
prove  a  fact ;  ^  for  even  direct  testimony,  to  be  believed  or 

1  Stephen's  limitation  of  the  term  "evidence  "  to  (1)  the  statements  of 
witnesses  and  (2)  documents  is  too  narrow.  "When,  in  a  controversy  be- 
tween a  tailor  and  his  customer,  involving  tlie  fit  of  a  coat,  the  customer 
puts  on  the  coat  and  wears  it  during  the  trial,  as  in  Brown  v.  Foster,  113 
Mass.,  at  p.  137,  a  basis  of  inference  is  supplied  otherwise  than  by  reason- 
ing or  by  statements,  whether  oral  or  written  ;  and  it  seems  impossible  to 
deny  to  this  the  name  of  "evidence."     It  is  what  Bentham  called  "real 


264  LAW  OF   EVIDENCE. 

disbelieved,  according  as  we  trust  the  witness,  is  really 
but  a  basis  of  inference.  In  giving  evidence  we  are  furnish- 
ing to  a  tribunal  a  new  basis  for  reasoning.  This  is  not 
saying  that  we  do  not  have  to  reason  in  order  to  ascertain 
this  basis;  it  is  merely  saying  that  reasoning  alone  will 
not,  or  at  least  does  not,  supply  it.  The  new  element  thus 
added  is  what  we  call  the  evidence. 

It  must  be  noticed,  then,  that  "evidence,"  in  the  sense 
used  when  we  speak  of  the  law  of  evidence,  lias  not  the 
large  meaning  imputed  to  it  in  ordinary  discourse.  It  is 
a  term  of  forensic  procedure;  and  imports  something  put 
forward  in  a  court  of  justice.  When  men  speak  of  his- 
torical evidence  and  scientific  evidence,  and  the  evidences 
of  Christianity,  they  are  talking  about  a  different  sort  of 
thing.  The  law  of  evidence  has  to  do  with  the  furnish- 
ing to  a  court  of  matter  of  fact,  for  use  in  a  judicial 
investigation.  But  how  "  has  to  do  "  ?  (1)  It  prescribes 
the  manner  of  presenting  evidence;  as  by  requiring  that  it 
shall  be  given  in  open  court,  by  one  who  personally  knows 
the  thing,  appearing  in  person,  subject  to  cross-examina- 
tion, or  by  allowing  it  to  be  given  by  deposition,  taken 
in  such  and  such  a  way;  and  the  like.  (2)  It  fixes  the 
qualifications  and  the  privilege  of  witnesses,  and  the 
mode  of  examining  them.  (3)  And  chiefiy,  it  determines, 
as  among  probative  matters,  matters  in  their  nature  evi- 
dential, —  what  classes  of  things  shall  not  be  received. 
This  excluding  function  is  the  characteristic  one  in  our  law 
of  evidence. 

Observe,  at  this  point,  one  or  two  fundamental  concep- 
tions. There  is  a  principle  —  not  so  much  a  rule  of  evi- 
dence as  a  presupposition  involved  in  the  very  conception 

ovidoncf,"  a  ])lir;isc  wliicli  inip<irtH  a  very  valuable  discrimination,  when 
li!riito(i  to  that  whicli  is  ])r('soiito(l  directly  to  the  senses  of  the  tribunal. 
It  is  not,  jiractically,  of  nuu-h  importance  when  divided  further  into  "re- 
ported real  evidence!,"  etc.  Best,  in  liis  treatise,  has  confused  the  tojjic  by 
followiiiff  lienthiim  into  this  sort  of  refinement,  overlooking,  probably,  for 
the  moment,  the  fnct  tliat  Henthani,  unlike  Iiiinself,  was  engaged  in  a 
philosopliical  discussion  and  waa  not  writing  a  law  book. 


LEGAL   REASONING.  265 

of  a  rational  system  of  evidence,  as  contrasted  with  the 
old  formal  and  mechanical  systems  —  which  forbids  receiv- 
ing anything  irrelevant,  not  logically  probative.  How 
are  we  to  know  what  these  forbidden  things  are  ?  Not 
by  any  rule  of  law.  The  law  furnishes  no  test  of  rele- 
vancy. For  this,  it  tacitly  refers  to  logic  and  general 
experience,  —  assuming  that  the  principles  of  reasoning 
are  known  to  its  judges  and  ministers,  just  as  a  vast  mul- 
titude of  other  things  are  assumed  as  already  sufficiently 
known  to  them. 

There  is  another  precept  which  should  be  laid  down  as 
preliminary,  in  stating  the  law  of  evidence;  namely,  that 
unless  excluded  by  some  rule  or  principle  of  law,  all  that 
is  logically  probative  is  admissible.  This  general  admis- 
sibility, however,  of  what  is  logically  probative  is  not, 
like  the  former  principle,  a  necessary  presupposition  in 
a  rational  system  of  evidence;  there  are  many  exceptions 
to  it.  Yet,  in  order  to  a  clear  conception  of  the  law, 
it  is  important  to  notice  this  also  as  being  a  fundamental 
proposition.  >  In  an  historical  sense  it  has  not  been  the 
fundamental  thing,  to  which  the  different  exclusions  were 
exceptions.  What  has  taken  place,  in  fact,  is  the  shut- 
ting out  by  the  judges  of  one  and  another  thing  from  time 
to  time;  and  so,  gradually,  the  recognition  of  this  exclu- 
sion under  a  rule.  These  rules  of  exclusion  have  had 
their  exceptions ;  and  so  the  law  has  come  into  the  shape 
of  a  set  of  primary  rules  of  exclusion;  and  then  a  set  of 
exceptions  to  these  rules.  For  example,  in  the  case  of 
hearsay,  our  courts  treat  as  the  affirmative  rule  the  one 
which  excludes  hearsay ;  and  in  a  new  case,  unless  it  can 
be  brought  within  an  admitted  exception,  this  is  the  rule 
which   is   applied.^     And   yet,  while  this    is  historically 

1  And  so  Lord  Blackburn  puts  it,  at  the  end  of  his  opinion  in  the  im- 
portant case  of  Sturla  v.  Freccia,  5  App.  Cas.  623 :  "  I  base  my  judgment 
on  this,  that  no  case  has  gone  so  far  as  to  say  that  such  a  document  could 
be  received ;  and  clearly,  unless  it  is  to  be  brought  within  some  one  of  the 
exceptions,  it  would  fall  within  the  general  rule  that  hearsay  evidence  is 


266  LAW  OF  EVIDENCE. 

true,  the  main  propositions  which  I  have  stated  shouhl,  in 
the  order  of  thought,  be  first  laid  down  and  always  kept 
in  mind  as  fundamental.  If  the  doing  of  this  shall  bring 
about  a  restatement  of  some  material  parts  of  the  law  of 
evidence,  that,  perhaps,  will  only  turn  out  as  it  should. 

In  stating  thus  our  two  large,  fundamental  conceptions, 
we  must  not  fall  into  the  error  of  supposing  that  rele- 
vancy, logical  connection,  real  or  supposed,  is  the  only  test 
of  admissibility;  for  so  we  should  drop  out  of  sight  the 
chief  part  of  the  law  of  evidence.  When  we  have  said 
(1)  that,  without  any  exception,  nothing  which  is  not,  or 
is  not  supposed  to  be,  logically  relevant  is  admissible; 
and  (2)  that,  subject  to  many  exceptions  and  qualifica- 
tions, whatever  is  logically  relevant  is  admissible;  it  is 
obvious  that,  in  reality,  there  are  tests  of  admissibility 
other  than  logical  relevancy.  Some  things  are  rejected  as 
being  of  too  slight  a  significance,  or  as  having  too  con- 
jectural and  remote  a  connection;  others,  as  being  dan- 
gerous, in  their  effect  on  the  jury,  and  likely  to  be 
misused  or  overestimated  by  that  body;  others,  as  being 
impolitic,  or  unsafe  on  public  grounds;  others,  on  the 
bare  ground  of  precedent.  It  is  this  sort  of  thing,  as  I 
said  before,  —  the  rejection  on  one  or  another  practical 
ground,  of  what  is  really  probative,  — which  is  the  charac- 
teristic thing  in  the  law  of  evidence;  stamping  it  as  the 
child  of  the  jury  system.^ 

not  admissible."  Compare  tlie  dealing  of  Erie,  C.  J.,  with  a  rule  in  the 
law  of  sale  (Eicholz  i'.  Bannister,  17  C.  B.  n.  s.  708),  "  beset  with  so  many 
exceptions  that  tliey  well  nigli  cat  it  up." 

1  It  is  liere  tbat  Mr.  Justice  Stejihen's  treatment  of  the  law  of  evidence 
is  j)crj)lcxiiig,  and  lias  the  aspect  of  a  lonr  deforce.  Helpful  as  his  writ- 
ings on  this  subject  bave  been,  tlicy  are  injured  by  the  small  consideration 
tbat  lie  shows  for  tiie  historical  as])cct  of  the  matter,  and  by  tbe  over- 
ingenious  attcmjit  to  put  the  rules  of  evidence  wholly  into  terms  of  rele- 
vancy. It  is  to  1)0  observed  that  by  relevancy  lie  always  means  logical 
relevancy  ;  the  common  but  uniiistructive  distinction  between  legal  and 
logical  relevancy  is  not  made  by  Iiim.  Tliis  attempt  goes  far  to  deprive 
his  work  of  permanent  value ;  it  is  impossible  thus  to  take  the  kingdom 


LEGAL  REASONING.  267 

The  law  of  evidence  is  the  creature  of  experience  rather 
than  logic,  and  we  cannot  escape  the  necessity  of  tracing 

of  heaven  by  force.  One  who  would  state  the  law  of  evidence  truly  must 
allow  himvSelf  to  grow  intimately  acquainted  with  the  working  of  the  jury 
system  and  its  long  history.  In  the  lutroduction  to  the  Digest  of  Evidence, 
the  author  says :  "  The  great  bulk  of  the  law  of  evidence  consists  of  neg- 
ative rules  declaring  what,  as  the  expression  runs,  is  not  evidence.  The 
doctrine  that  aU  facts  in  issue,  and  relevant  to  the  issue,  and  no  others, 
may  be  proved,  is  the  unexpressed  principle  which  forms  the  centre  of, 
aud  gives  unity  to,  all  these  express  negative  rules.  To  me  these  rules 
always  appeared  to  form  a  hopeless  mass  of  confusion,  which  might  be 
remembered  by  a  great  effort,  but  could  not  be  understood  as  a  whole,  or 
reduced  to  a  system,  until  it  occurred  to  me  to  ask  the  question,  '  What 
is  this  evidence  which  you  tell  me  hearsay  is  not  1  '  The  expression  '  hear- 
say is  not  evidence  '  seemed  to  assume  that  I  knew,  by  the  light  of  nature, 
what  evidence  was ;  but  I  perceived  at  last  that  that  was  what  I  did  not 
know.  I  found  that  I  was  in  the  position  of  a  person  who,  having  never 
seen  a  cat,  is  instructed  about  them  in  this  fashion :  '  Lions  are  not  cats  in 
one  sense  of  the  word,  nor  are  tigers  nor  leopards,  though  you  might  be 
inclined  to  think  they  were.'  Show  me  a  cat,  to  begin  with,  and  I  at 
once  understand  what  is  meant  by  saying  that  the  liou  is  not  a  cat,  and 
why  it  is  possible  to  call  him  one.  Tell  me  what  evidence  is,  and  I  shall 
be  able  to  understand  why  you  say  this  and  that  class  of  facts  are  not 
evidence.  The  question,  '  What  is  evidence  ? '  gradually  disclosed  the 
ambiguity  of  the  word.  To  describe  a  matter  of  fact  as  'evidence'  in 
the  seuse  of  testimony  is  obviously  nonsense.  No  one  wants  to  be  told 
that  hearsay,  wliatever  else  it  is,  is  not  testimony.  What  then  does  the 
word  mean  "?  Tlie  only  possible  answer  is :  it  means  that  the  one  fact 
either  is,  or  else  is  not,  considered  by  the  person  using  the  expression  to 
furnish  a  premise  "or  part  of  a  premise  from  which  the  existence  of  the 
other  is  a  necessary  or  probable  inference,  —  in  other  words,  that  the  one 
fact  is  or  is  not  relevant  to  the  other.  When  the  inquiry  is  pushed  farther, 
aud  the  nature  of  relevancy  has  to  be  considered  in  itself,  and  apart  from 
legal  rules  about  it,  we  are  led  to  inductive  logic,  which  shows  that  judicial 
evidence  is  only  one  case  of  the  general  problem  of  science,  namely,  in- 
ferring the  unknown  from  the  known.  As  far  as  the  logical  theory  of 
tlie  matter  is  concerned,  this  is  an  ultimate  auswer.  The  logical  theory 
was  cleared  up  by  Mr.  Mill.  Bentham  aud  some  other  writers  had  more  or 
less  discussed  the  connection  of  logic  with  the  rules  of  evidence.  But  I 
am  not  aware  that  it  occurred  to  any  one  before  I  published  my  '  Intro- 
duction to  the  Indian  Evidence  Act '  to  point  out  in  detail  the  very  close 
resemblance  which  exists  between  Mr.  Mill's  theory  and  the  existing  state 
of  the  law.    The  law  has  been  worked  out  by  degrees  by  many  generations 


268  LAW  OF  EVIDENCE. 

that  experience.  Founded,  as  being  a  rational  system, 
upon  the  laws  that  govern  human  thought,  and  so  presup- 
posing and  of  necessity  conforming  to  these,  it  yet  recog- 
nizes another  influence  that  must,  at  every  moment,  be 
taken  into  account;  for  it  is  this  which  brought  it  into 
being,  as  it  is  the  absence  of  this  which  alone  accounts  for 
the  non-existence  of  it  in  all  other  than  Englisli-speaking 
countries,  whether  ancient  or  modern.  I  have  already 
indicated  that  the  main  errand  of  the  law  of  evidence  is  to 
determine  not  so  much  what  is  admissible  in  proof,  as 
what  is  inadmissible.  Assuming,  in  general,  that  what  is 
evidential  is  receivable,  it  is  occupied  in  pointing  out 
what  part  of  this  mass  of  matter  is  excluded.     It  denies 

of  judges  who  perceived,  more  or  less  distinctly,  the  principles  upon  which 
it  ought  to  be  founded.  The  rules  established  by  them  no  doubt  treat  as 
relevant  some  facts,  which  cannot  be  said  to  be  so.  More  frequently  they 
treat  as  irrelevant  facts  which  are  really  relevant ;  but,  exceptions  ex- 
cepted, all  their  rules  are  reducible  to  the  principle  that  facts  in  issue,  or 
relevant  to  the  issue,  and  no  others,  may  be  proved." 

It  is  singular  that  Stephen  should  have  chosen  as  a  basis  for  careful 
discriminations  so  loose  a  catch  as  this,  that  "  liearsay  is  not  evidence." 
Of  course  it  often  is  evidence,  in  the  sense  of  being  logically  relevant ; 
what  is  meant  is,  that  it  is  not  legally  admissible.  If  the  phrase  "  hearsay 
is  not  evidence"  is  to  be  used  in  serious  discussion,  the  term  "  evidence  " 
must  have  the  jnirely  special  sense  of  that  sort  of  evidence  wliicli  is  legally 
receivable  by  the  courts.  The  true  statement  is,  that  wliile  hearsay  may 
be  evidence,  it  is  not  admissible  evidence  ;  it  is  a  kind  of  evidence  which 
is  rejected.  When  tlie  writer  says  that  "  the  doctrine  that  all  facts  in  issue 
and  relevant  to  the  i.ssue,  and  no  otiiers,  may  be  proved,  is  the  unexpressed 
principle  which  forms  the  centre  of,  and  gives  unity  to,  all  these  express 
negative  rules,"  namely,  rules  "  declaring  what,  as  tlie  expression  runs,  is 
not  evidence,"  it  is  not  quite  clear  what  is  meant.  But  certainly  the  two- 
fold doctrine  wliicli  is  named  does  not  "form  tlie  centre  of,  and  give  unity 
to,  all  tiiesc  express  negative  rules,"  in  the  sense  of  supplying  the  test  by 
whicli  they  are  applied.  Sometiiing  else  has  to  be  taken  into  account ; 
namely,  the  many  ])ractical  considerations  which  the  jury  .system  brought 
vividlv  lioine  to  the  judges,  as  tiiey  sliaped  our  rules  of  evidence  in  tiie 
daily  administration  of  it.  When  tiie  writer  says  tliat  lie  is  assumed  to 
know  what  "  cvidoncc  "  is,  ho  states  what  is  true  enough  ;  the  law  does 
take  it  for  granted  that  jieofjle  know  how  to  find  out  what  is  and  what  is 
not  probative,  as  matter  of  reason  and  general  cxjierience. 


LEGAL  REASONING.  269 

to  this  excluded  part,  not  the  uame  of  evidence,  but  the 
name  of  admissible  evidence.  Admissibility  is  deter- 
mined, first,  by  relevancy,  —  an  affair  of  logic  and  expe- 
rience, and  not  at  all  of  law;  second,  but  only  indirectly, 
by  the  law  of  evidence,  which  declares  whether  any  given 
matter  which  is  logically  probative  is  excluded. 

Is  it  then  really  so,  that  this  great  mviltitude  of  deci- 
sions, emerging  day  by  day,  and  holding  that  such  and  such 
evidence  is  or  is  not  admissible,  have  so  little  to  do  with 
the  law  of  evidence  which  they  are  professing  to  declare  ? 
Yes.  The  greater  part  of  them  are  really  reducible  to 
mere  propositions  of  sound  reason  as  applied  to  a  point  of 
substantive  law  or  pleading.  When  a  man  mistakes  his 
proposition  of  substantive  law  and  offers  evidence  to  sus- 
tain the  erroneous  view,  he  is  daily  told  that  his  evidence 
is  not  admissible,  when  the  thing  meant  is  that  he  is 
wrong  in  his  notion  of  the  law  of  damages ;  ^  or  of  the 
legal  standard  of  diligence ;  ^  or  of  the  scope  of  the  general 
issue  in  pleading,^  or  of  a  plea  of  payment.  In  such  cases 
a  determination  that  what  is  offered  in  evidence  is  or  is 
not  receivable,  means  (1)  you  are  wrong  in  your  proposi- 
tion of  substantive  law;  and  (2),  having  regard  to  the 
true  proposition,  your  "evidence"  (i.  e.,  what  you  offer  as 
evidence)  is  logically  irrelevant.  All  such  determinations 
as  these,  of  which  there  is  a  vast,  uncountable  number  in 
our  books,  while  they  certainly  relate  to  evidence,  and 
involve  questions  of  law,  involve  no  point  at  all  in  the 
law  of  evidence.* 

1  Hart  V.  Pa.  R.  R.  Co.,  112  U.  S.  p.  343. 

2  Grand  Trunk  Ry.  Co.  v.  Richardson,  91  U.  S.  p.  469. 

^  Marine  Ins.  Co.  v.  Hodgson,  6  Cranch,  p.  219 ;  Young  v.  Black,  7  ib. 
p.  567;  Spooner  v.  Cummings,  15,'   Mass.  313. 

*  See  Holmes,  Common  Law,  120-129.  A  neat  illustration  of  the 
common  error  here  referred  to  is  furnished  in  the  very  recent  case  of 
Richmond  R.  R.  Co.  v.  Tobacco  Co.,  169  U.  S.  311  (1898).  in  which  the 
opinion  would  reduce  a  statutory  rule  as  to  the  liability  of  carriers  to  a 
rule  of  evidence.  A  statute  of  Virginia  had  provided  that  a  carrier  taking 
anything  for  a  point  beyond  his  own  terminus  should  be  deemed  to  assume 


270  LAW   OF   EVIDENCE. 

It  seems,  then,  that  our  law  of  evidence,  while  it  is,  em- 
phatically, a  rational  system,  as  contrasted  with  the  old 
formal  methods,  is  yet  a  peculiar  one.  In  the  shape  it 
has  taken,  it  is  not  at  all  a  necessary  development  of  the 
rational  method  of  proof;  so  that,  where  people  did  not 
have  the  jury,  or,  having  once  had  it,  did  not  keep  it,  as 
on  the  continent  of  Europe,  although  they,  no  less  than 
we,  worked  out  a  rational  system,  they  developed  under 
the  head  of  evidence,  no  separate  and  systematized  branch 
of  the  law. 

II.  ^Ba,  now,  let  us  bring  out  into  distinct  view  the 
elejnent  of  legal  reasoning, — an  element  common  to  all 
rational  systems  of  proof;  common  also,  in  rational  sys- 
tems, to  all  parts  of  the  law,  since  in  administering  the 
law,  in  all  parts  of  it,  this  process  is  forever  going  on,  with 
all  that  recognition  of  a  body  of  commonly  known  ideas, 
facts,  axioms,  and  processes  of  thought  which  the  exercise 
of  this  functioivjj^A^ys  and  everywhere  involves.  In  seek- 
ing to  ascertsa,iu  tlie  unknown  from  the  known,  a  judicial 
tribunal  is-called  on  to  use,  apply,  reflect  upon,  and  com- 
pare a  great  body  of  facts  and  ideas  of  which  it  is  already 
in  possession,  and  of  which  no  particle  of  "evidence," 
strictly  so  called,  is  ever  formally  presented  in  court. 
And  then,  in  addition,  it  has  to  be  put  in  possession  of 
new  material.      It  is  this    necessity,  that  of   furnishing 

an  olili;^;iti()ii  for  its  safe  carriage  through  the  wliole  route,  unless  at  the 
time  of  acceptance  he  were  exempted  from  such  liability  by  a  contract  in 
writing.  Even  if  there  were  such  contract  in  writing,  yet  in  case  of  loss 
the  carrier  was  to  bo  liable  unless  he  showed  that  it  did  not  occur  while 
tlie  thing  was  in  his  charge.  That  is  a  statutory  regulation  of  the  respon- 
sibility of  carriers ;  and  yet,  strangely,  it  is  declared  to  be  too  plain  for 
anything  but  statement  that  it  is  a  rule  of  evidence.  Perha])s  this  expo- 
sition may  be  acconntiMl  for  by  the  fact  tiiat  the  learned  and  able  judge 
who  gives  it  was  trained  in  the  jjract.ice  of  Louisiana,  where  common-law 
rules  and  j>rinciples  nro  much  modified  or  disjilacod.  The  same  remark, 
p(!rlia])s,  may  account  for  the  (!X])osition  in  Coilin  v.  U.  S.,  l.')6  U.  S.  432, 
and  in  Bram  v.  U.  S.,  108  U.  S.  532. 


LEGAL  EEASONING.  271 

new  matter,  whicli  gives  occasion  for  rules  of  evidence. 
On  the  other  hand,  the  function  of  scrutinizing  the  mate- 
rial which  it  has  once  got,  of  observing  its  implications, 
and  the  effect  of  one  part  on  another,  of  comparing  and 
inferring,  does  not  belong  to  the  region  of  the  law  of  evi- 
dence. To  the  hungry  furnace  of  the  reasoning  faculty 
the  law  of  evidence  is  but  a  stoker. 

Let  it  be  distinctly  set  down,  then,  that  the  whole 
process  of  legal  argumentation,  and  the  rules  for  it,  essen- 
tial as  these  are,  and  forever  pressing  upon  the  attention, 
are  mainly  an  affair  of  logic  and  general  experience,  not 
of  legal  precept.  I  say  mainly,  because  the  reasoning 
process,  in  its  application  to  particular  subjects,  gets 
always  a  tincture  from  the  subject-matter.  Undoubtedly 
there  are  rules  of  legal  practice  and  procedure,  qualifying 
and  restraining  the  free  processes  of  reason;  so  that  it  is 
a  proper  qualification,  when  we  use  the  phrase  legal  reason- 
ing; not  because,  as  compared  with  reasoning  in  general, 
it  calls  into  play  any  different  faculties  or  involves  any 
new  principles  or  methods,  or  is  the  creature  of  technical 
precepts;  but  because  in  law,  as  elsewhere,  in  adjusting 
old  and  universal  methods  to  the  immediate  purposes  in 
hand,  special  limitations,  exclusions,  and  qualifications 
have  to  be  taken  into  account.  In  particular  and  emphati- 
cally, in  legal  reasoning,  such  peculiarities  spring  from  the 
practical  aims  of  a  court  of  justice  and  the  practical  con- 
ditions of  its  work;  e.  g.,  from  the  nature  of  such  a  tribunal 
as  a  jury,  and  the  exigencies  of  time,  place,  and  subject- 
matter  which  control  its  operations.  In  dealing  with  liti- 
gation, courts  are  not  engaged  in  an  academic  exercise. 
With  them  the  search  for  truth  is  not  the  main  matter; 
their  desire  to  know  this,  and  their  ability  to  use  it,  are 
limited  by  the  requirements  of  their  main  business,  namely, 
that  of  awarding  justice,  i.  e.,  awarding  it  so  far  as  they 
may,  under  the  rules  of  law,  and  according  to  established 
usages  and  forms.  The  doctrine  of  estoppel,  for  instance, 
often  makes  the  actual  truth  simply  irrelevant,  because 


272  LAW  OF  EVIDENCE. 

the  real  question  is,  What  is  it  just  and  lawful  that  a 
party  should  claim  ?  And  again,  —  whether  it  be  out  of 
regard  to  the  general  want  of  time  and  convenient  oppor- 
tunity ;  or  to  the  nature  of  the  questions  discussed,  and  the 
ordinary  methods  of  mankind  in  judging  of  the  practical 
problems  of  life  and  business,  and  the  practical  impossibil- 
ity of  running  an  inquiry  out  into  fine  details;  or  to  the 
nature  of  our  popular  tribunal,  the  jury;  or  for  whatever 
reason;  we  have  principles  of  exclusion  which  limit  tlie 
inquiry,  and  so  the  evidence,  to  matters  that  have  a  clear 
and  obvious  bearing  and  a  plainly  appreciable  weight,  as 
contrasted  witli  what  is  slight,  conjectural,  and  remote; 
and  to  matters  which  do  not  unnecessarily  tend  to  com- 
plicate and  confuse  the  determination  of  the  issue.  These 
I  call  principles,  rather  than  rules,  because  of  their  neces- 
sarily indeterminate  form,  and  their  appeal  to  the  general 
sense  and  judgment  of  the  tribunal;  as  contrasted  with 
definite  legal  rules,  in  the  application  of  which  it  is  rea- 
sonable to  expect  a  near  approach  to  unanimity  among 
competent  minds. 

We  have  no  treatises  and  no  chapters  of  treatises  that 
deal  separately  and  specifically  with  the  topic  of  legal 
reasoning  in  the  ascertainment  of  facts.  Copious  books 
on  Evidence,  on  Procedure,  and  on  the  many  branches  of 
substantive  law,  we  have,  but  none  upon  the  nature  and 
methods  of  that  art  by  which  all  the  rules  of  all  these 
various  subjects  are  applied  and  developed.  It  is  not  my 
purpose  now  to  furnish  one,  but  only  to  bring  this  subject 
out  into  the  light,  to  mark  its  characteristics,  and  to  em- 
phasize its  se])arate  place  and  distinctive  character. 

Why  is  any  such  exposition  needed  ?  Certainly  not, 
as  I  have  said,  bfcuuse  legal  reasoning  differs  in  any  fun- 
dainontal  respect  from  any  other  reasoning,  or  becanse 
hiwyei's  liave  any  jxHailiar  organs  or  methods  for  tracking 
and  a])})reliending  the  truth.  What  is  called  the  "legal 
mind  "  is  still  the  human  mind,  and  it  must  reason  accord- 
ing to  the  laws  of  its  constitution.     There  is  a  good  deal 


LEGAL  EEASONING.  273 

in  our  ordinary  legal  phraseology  that  might  seem  to  dis- 
credit this,  as  when  we  read  of  rules  that  require  inferences 
which  the  principles  of  sound  reasoning  neither  require 
nor  allow;  and  of  the  duty  to  weigh  a  rule  of  presump- 
tion in  one  scale  and  evidence  in  another.^  But  these 
are  merely  phrases;  the  real  thing  meant,  so  far  as  a 
clear  meaning  can  be  imputed  to  them,  is  not  what  is 
said. 

But  while  legal  reasoning,  at  bottom,  is  like  all  other 
reasoning,  yet  a  thousand  practical  considerations  come 
in  to  shape  it.  There  is  one  grave  reason  for  discriminat- 
ing this  topic  and  remarking  its  characteristic  methods 
and  its  separate  place  which  has  been  too  little  observed, 
namely,  that  it  has  a  tendency  to  run  over  and  mingle 
with  other  subjects,  and  to  distress  all  attempts  to  clarify 
them.  In  particular  this  has  happened  with  the  subject 
of  Evidence,  llules,  principles,  and  methods  of  legal  rea- 
soning have  taken  on  the  color  and  used  the  phraseology 
of  this  subject,  and  thus  disguised,  have  figured  as  rules  of 
Evidence,  to  the  perplexity  and  confusion  of  those  who 
sought  for  a  strong  grasp  of  the  subject.  A  bastard  sort 
of  technicality  has  thus  sprung  up,  and  a  crop  of  fanciful 
reasons  for  anomalies  destitute  of  reason,  which  bafSe  and 
disgust  a  healthy  mind.  To  detach  and  scrutinize  this 
topic  of  legal  reasoning  would  tend  to  relieve  our  main 
subject  of  a  great  part  of  its  difficulties  and  ambiguities. 

What  would  be  some  of  the  leading  matters  with  which 
such  an  exposition  would  have  to  deal  ?  It  would  need,  in 
the  first  place,  to  take  clearly  into  account  the  general 
scope  and  purposes  of  legal  reasoning  in  the  ascertain- 
ment of  facts.  This  does  not,  like  mathematical  reason- 
ing, have  to  do  merely  with  ideal  truth,  with  mere  mental 
conceptions;  it  is  not  aiming  at  demonstration  and  ideally 
exact  results;  it  deals  with  probabilities  and  not  with 
certainties;  it  works  in  an  atmosphere,  and  not  in  a 
vacuum;  it  has  to  allow  for  friction,  for  accident  and  mis- 

1  Stephen,  Dig   Ev.  Art.  I.;  infra,  337,  561. 
18 


274  LAW  OF  EVIDENCE. 

chance.  Nor  is  it,  like  natural  science,  occupied  merely 
with  objective  truth.  It  is  concerned  with  human  con- 
duct, and  all  its  elements  of  fraud,  inadvertence,  wilful- 
ness, and  uncertainty.  Nor,  as  in  history,  is  the  purpose 
in  hand  merely  that  of  ascertaining  and  setting  forth  the 
facts,  or  the  habits,  of  human  life  and  action.  In  all 
these  fields,  not  merely  is  the  subject-matter  in  hand  and 
the  purposes,  different  from  those  held  in  view  in  conduct- 
ing legal  inquiries,  but  it  is  handled  for  the  most  part 
under  different  conditions,  and  under  exigencies  of  time 
and  place  and  circumstance  that  control  the  general  aims 
in  view,  and  the  actual  conduct  of  the  proceedings.  The 
peculiar  character  and  scope  of  legal  reasoning  is  deter- 
mined by  its  purely  practical  aims  and  the  necessities  of 
its  procedure  and  machinery.  Litigation  imports,  for  the 
most  part,  as  we  have  seen,  a  contest,  and  adversaries.  It 
has  in  it,  therefore,  a  personal  element,  and  it  requires 
not  merely  a  consideration  of  what  is  just,  in  general,  but 
of  what  is  just  as  between  these  adversaries.  It  has  often 
to  be  conducted  with  the  aid  of  a  tribunal  whose  pecu- 
liarities in  point  of  number  and  of  physical  and  mental 
capacity,  and  whose  danger  of  being  misled  must  con- 
stantly be  considered.  It  must  shape  itself  to  various 
other  exigencies  of  a  practical  kind,  such  as  the  time  that 
it  is  possible  to  allow  to  any  particular  case,  the  reason- 
able limitations  of  the  number  of  witnesses,  the  opportu- 
nities for  reply,  and  the  chance  to  correct  errors.  It  must 
adjust  its  processes  to  general  ends,  so  as  generally  to 
promote  justice,  and  to  discourage  evil,  to  maintain  long- 
establislicd  riglits,  and  the  existing  governmental  order. 
Tlie  judifial  oiHce  is  really  one  of  administration.  Long 
after  the  business  of  legislation  passed  from  the  hands 
of  tli(!  king,  the  judicial  function  remained  with  him  and 
was  exercised  by  his  agents;  by  judgc^s  appointed  by  him, 
and  holding  oflice  merely  at  his  jdeasure.  And  when  men 
began  to  talk  of  the  separation  of  tlio  deiiartments  of 
government   it    was   long   before  the  judicial   department 


LEGAL   REASONING.  275 

took  anything  like  a  co-ordinate  place.  Even  when  it  did 
take  that  place,  it  remained  still,  by  its  own  nature,  merely 
a  branch  of  public  administration. 

"While  all  this  is  true,  while  legal  reasoning  in  ascertain- 
ing facts,  as  I  have  said,  is  an  art  primarily,  and  above 
all,  subsidiary  to  dispensing  justice,  and  not  primarily, 
and  above  all,  subsidiary  to  truth-seeking;  while  its 
search  after  truth  is  subordinate  to  this  main  purpose ;  and 
while  it  thus  develops  its  own  maxims,  principles,  and 
rules,  growing  out  of  the  personal  relation  of  the  parties  to 
each  other  and  to  the  court;  out  of  the  general  ends  which 
the  court  has  in  view,  e.g.,  out  of  the  need,  on  the  one 
hand,  of  supporting  property  and  ancient  rights,  and  of 
adhering  to  forms  and  precedents,  and  out  of  the  need,  on 
the  other  hand,  of  adapting  procedure  and  administration 
to  practical  exigencies  and  to  the  sense  of  justice  and 
humanity ;  out  of  the  necessity  for  decision  and  for  action 
of  some  sort;  out  of  the  practical  limitations  of  time;  out 
of  the  practical  requirements  of  good  sense;  and  out  of  the 
accumulations  of  experience  in  the  conduct  of  trials;  — 
while  these  are  some  of  the  chief  characteristics  of  legal 
reasoning,  it  will  be  noticed  that  they  are  only,  in  the 
nature  of  them,  so  many  reasonable  accommodations  of  the 
general  process  to  particular  subject-matters  and  particu- 
lar aims.  Amidst  them  all  the  great  characteristics  of 
the  art  of  reasoning  and  the  laws  of  thought  still  remain 
constant.  As  regards  the  main  methods  in  hand,  they  are 
still  those  untechnical  ways  of  all  sound  reasoning,  of  the 
logical  process  in  its  normal  and  ordinary  manifestations; 
and  the  rules  that  govern  it  here  are  the  general  rules 
that  govern  it  everywhere,  the  ordinary  rules  of  human 
thought  and  human  experience,  to  be  sought  in  the  ordi- 
nary sources,  and  not  in  law  books.  And  so  a  knowledge 
of  these  processes  and  methods  is  presupposed  in  all 
judges  and  lawyers.  When  Abraham  Fraunce,  therefore, 
the  friend  of  Sir  Philip  Sidney,  published,  in  1588,  "The 
Lawyer's  Logic,"  it  turned  out  to  be  only  a  rather  novel 


276  LAW   OF   EVIDENCE. 

sort  of  treatise  on  the  general  subject,  illustrated  by 
examples  from  Plowden's  recent  volume  of  1571,  and  other 
law  books.  He  had  first  written  his  book  under  the  name 
of  "The  Shepherd's  Logic,"  taking  his  examples  from 
Spenser's  poem,  "The  Shepherd's  Calendar,"  published  in 
1579.  The  illustrations  differed;  the  thing  illustrated  was 
the  same. 

We  may  dismiss,  then,  any  notion  that  legal  reasoning 
is  some  non-natural  process  by  which  the  human  mind  is 
required  to  infer  what  does  not  logically  follow.  Expres- 
sions that  import  this  are  to  be  regarded  as  mere  phrases 
for  what  may  be  and  should  be  more  accurately  stated.. 
The  technicalities  of  legal  reasoning  merely  grow  out  of 
the  material,   the  subject-matter,   in  which  it  works. 

The  three  chapters  next  following  may  indicate  more 
fully  the  contrivances  and  methods  of  legal  reasoning,  and 
in  some  degree  illustrate  what  is  here  said  about  it.  But 
enough  has  already  been  said  to  show  that  one  who  would 
understand  our  law  of  evidence,  must  detach,  and  hold 
apart  from  it  all  that  belongs  to  that  other  untechnical  and 
far  wider  subject. 


JUDICIAL  NOTICE.  277 


CHAPTER  VII. 

JUDICIAL  NOTICE. 

We  have  observed  that  not  all  the  matter  of  fact  which 
courts  and  juries  rest  upon,  in  deciding  cases,  needs  to  be 
communicated  to  them  by  the  parties.  Much,  in  every 
case,  is  known  already,  and  much  is  common  to  all  cases; 
such  things  are  assumed,  stated  and  reasoned  upon  without 
discussion.  Often,  also,  much  of  which  there  might,  in 
point  of  mere  theory,  be  a  doubt,  will,  as  a  matter  of  estab- 
lished practice,  be  allowed  by  the  court,  in  the  first  in- 
stance, without  formal  proof.  And  there  is  much  which 
belongs  in  a  dubious  and  arguable  region,  as  to  which  a 
court  may  or  may  not  proceed  in  this  manner. 

The  maxim  that  what  is  known  need  not  be  proved, 
manifesta  [or  notoria]  non  indigent  probatione,  may  be 
traced  far  back  in  the  civil  and  the  canon  law;  indeed,  it 
is  probably  coeval  with  legal  procedure  itself.  We  find 
it  as  a  maxim  in  our  own  books, ^  and  it  is  applied  in 
every  part  of  our  law.  It  is  qualified  by  another  prin- 
ciple, also  very  old,  and  often  overtopping  the  former  in 
its  importance,  —  non  refert  quid  notum  sit  judici,  si 
notum,  non  sit  in  forma  judicii.^  These  two  maxims  seem 
to  intimate  the  whole  doctrine  of  judicial  notice.     It  has 

1  Bracton's  Note  Book,  supra  1.3  n. ;  7  Co.  39  a-39  b  ;  11  Co.  25  ;  State 
V.  Intoxicating  Liquors,  73  Maine,  278. 

2  Coke,  C.  J.,  in  an  action  of  slander,  Crawford  v.  Blisse,  2  Bui.  150 
(1613),  quotes  this  from  Bracton,  to  support  the  overstrained  doctrine  of 
his  own  day  about  taking  the  words  charged  m  mitiori  sensii. 


278  LAW  OF  EVIDENCE. 

two  aspects,  one  regarding  the  liberty  which  the  judicial 
functionary  has  in  taking  things  for  granted,  and  the  other 
the  restraints  that  limit  him.^ 

What  is  the  nature  and  scope  of  this  doctrine  of  judi- 
cial notice,  and  whereabout  in  the  law  does  it  belong  ?  In 
trying  to  answer  these  questions,  I  propose  first  to  deal 
briefly  with  the  second  one;  then  to  present  a  number 
of  cases  which  may  furnish  illustration,  as  well  as  a  test 
and  a  basis  of  judgment  as  regards  both  questions;  then 
to  consider  briefly  the  sort  of  thing  of  which  courts  will 
take  notice  without  proof,  distinguishing  also  the  case  of 
juries;  and  finally  to  mention  a  few  discriminations  which 
it  is  important  to  keep  in  mind  if  one  would  make  an 
intelligent  application  of  the  principle.  The  first  question 
will  have  been  answered  as  we  go  along. 

I.  Whereabout  in  the  law  does  the  doctrine  of  judicial 
notice  belong  ?  Wherever  the  process  of  reasoning  has  a 
place,  and  that  is  everywhere.  Not  peculiarly  in  the  law 
of  evidence.  It  does,  indeed,  find  in  the  region  of  evi- 
dence a  frequent  and  conspicuous  application;  but  the 
habit  of  regarding  this  topic  as  a  mere  title  in  the  law  of 
evidence    obscures    the   true   conception  of  both  subjects. 

1  The  expression  "  to  take  notice  of  "  anything,  in  our  ordinary  popular 
phraseology,  imports  observing  or  remarking  it.  In  the  legal  language 
of  to-day  to  "  take  notice  "  has  a  meaning  correlative  to  that  of  giving 
notice ;  namely,  that  of  a  man's  accepting  or  charging  himself  with  a  notifi- 
cation, or  with  tlie  imputation  of  knowledge  of  a  thing.  But  the  import  of 
the  legal  expression  to  "  take  judicial  notice,"  as  indicating  the  recognition 
without  proof  of  something  as  existing  or  as  being  true,  seems  traceable 
rather  to  an  older  English  usage,  'i'he  word  "  notice"  was  formerly  often 
used  interchangeably  with  knowledge,  and  with  our  legal  term  "  con- 
usance." In  the  Englisli  of  our  Bible  we  read  :  "  Wherefore  have  we 
afflicted  our  souls  and  thou  takest  no  knowledge  ?  "  (Isa.  Iviii.  3.)  "  They 
took  knowledge  of  them  that  they  had  been  with  Jesus."  (Acts  iv.  13.) 
So  we  find  in  the  Norman  French  of  our  old  reports  the  expressious  take 
"  notice  "  and  take  "  conusance ;  "  and  when  the  reports  begin  to  be  trans- 
lated and  published  in  English,  in  the  seventeentli  century  and  later,  we 
find  that  the  i)liriisc  becomes,  iutcrchaugeably,  take  notice,  take  knowledge, 
and  take  conusance. 


JUDICIAL  NOTICE.  279 

That  habit  is  quite  modern.  The  careful  observer  will 
notice  that  a  very  great  proportion  of  the  cases  involving 
judicial  notice  raise  no  question  at  all  in  that  part  of  the 
law;  they  relate  to  pleading,  to  the  construction  of  the 
record  or  of  other  writings,  the  legal  definition  of  words, 
the  interpretation  of  conduct,  the  process  of  reasoning, 
and  the  regulation  of  trials.  In  short,  the  cases  relate  to 
the  exercise  of  the  function  of  judicature  in  all  its  scope 
and  at  every  step.  The  nature  of  the  process,  as  well  as 
the  name  of  it,  find  their  best  illustration  in  some  of  the 
older  cases,  long  before  questions  in  the  law  of  evidence 
engaged  attention.  We  are  the  less  surprised,  therefore, 
to  find  that  it  was  not  until  Starkie  printed  his  book  on 
evidence,  in  1824,  that  any  special  mention  of  this  subject 
occurs  in  legal  treatises  on  evidence;  and  that  this  writer 
has  very  little  to  say  about  it.'-  The  subject  of  judicial 
notice,  then,  belongs  to  the  general  topic  of  legal  or  judi- 
cial reasoning.  It  is,  indeed,  woven  into  the  very  texture 
of  the  judicial  function.  In  conducting  a  process  of 
judicial  reasoning,  as  of  other  reasoning,  not  a  step  can  be 
taken  without  assuming  something  which  has  not  been 
proved;  ^  and  the  capacity  to  do  this,  with  competent  judg- 

1  Stark.  Ev.  i.  400-405.  Bentham,  to  be  sure,  in  his  "Eationale  of 
Judicial  Evidence"  (which  was  not  a  law  book),  composed  in  1802-1812, 
and  published  partly  by  Duniont  in  1823,  and  in  full  under  the  editorship 
of  John  Stuart  Mill  in  1827,  had  briefly  discussed  the  question  (Works, 
vi.  276,  book  i.  e.  12)  how  far  a  judge  can  pass  on  questions  of  fact  without 
"evidence."  He  concludes,  inter  alia,  that  a  judge  should  be  allowed  "  at 
the  instance  of  either  party  to  pronounce,  and,  in  the  formation  of  the 
ground  of  the  decision,  assume,  any  alleged  matter  of  fact  as  notorious," 
subject  to  the  right  of  the  otlier  party  to  deny  the  notoriety  and  call 
for  proof. 

2  Stephen  (Dig.  Ev.,  1st  and  2d  eds.,  c.  vii.)  originally  dealt  M'ith 
judicial  notice  under  tlie  general  head  of  "  Proof,"  and  tlie  special  head 
of  "  Facts  which  need  not  be  Proved."  For  this  he  was  taken  to  task  by 
an  acute  critic  (20  Sol.  Journal,  937),  who  suggested  that  since  Stephen's 
art.  93,  relating  to  the  burden  of  proof,  declares  tliat  whoever  desires  a 
judgment  as  to  any  legal  right  depending  on  the  existence  or  non-exist- 
ence of  facts  which  he  asserts,  "  must  prove  that  those  facts  do  or  do  not 


280  LAW   OF   EVIDENCE. 

ment  and  efficiency,   is   imputed  to   judges  and  juries   as 
part  of  their  necessary  mental  outfit. 

exist ; "  aud  since  art.  .59  (about  judicial  notice)  declares  that  some  facts 
asserted  by  a  party  need  uot  be  proved  by  him,  —  the  true  place  for  this 
last  was  that  of  an  exception  to  the  art.  93.  This  led  Stephen,  in  his 
tliird  edition,  to  change  the  special  head  of  c.  vii.  from  "Facts  which 
need  not  be  Proved "  to  "  Facts  proved  Otherwise  than  by  Evidence  " 
(liis  definition  of  "evidence,"  art.  1,  being  (a)  the  statements  of  witnesses 
in  court,  and  (b]  documents  produced  in  court),  and  called  forth  certain 
remarks  in  the  preface  to  the  third  edition  (Little  and  Brown's  ed.  (1877) 
26  :  "  By  proof  I  mean  the  means  used  of  making  tlie  coui't  aware  of  the 
existence  of  a  given  fact ;  and  surely  tlie  simplest  possible  way  of  doing  so 
is  to  remind  the  court  that  it  knows  it  already.  It  is  like  proving  that  it  is 
raining  by  telling  the  judge  to  look  out  of  the  window.  It  has  been  said 
that  judicial  notice  should  come  under  the  head  of  burden  of  proof ;  but 
surely  this  is  not  so.  The  rules  as  to  burden  of  proof  show  which  side 
ought  to  call  upon  tlie  court  to  take  judicial  notice  of  a  particular  fact ; 
but  the  act  of  taking  judicial  notice,  of  consciously  recalling  to  the  mind 
a  fact  known,  but  not  for  the  moment  adverted  to,  is  an  act  of  precisely 
the  same  kind  as  listening  to  the  evidence  of  a  witness  or  reading  a  docu- 
ment ;  that  is,  belongs  to  tlie  general  head  of  proof."  As  regards  all  this, 
one  or  two  things  may  be  briefly  remarked  :  (a)  "The  general  head  of 
proof,"  and  "  the  means  used  of  making  the  court  aware  of  the  existence 
of  a  given  fact,"  include  the  whole  topic  of  legal  reasoning  ;  they  spread 
far  beyond  tiie  law  of  evidence.  The  same  reach  belongs  to  the  burden 
of  proof.  So  tiiat  ])oth  Stephen  and  his  critic  recognize  the  wide  scope  of 
judicial  notice.  {!>)  It  seems  a  very  inadequate  conception  of  the  subject 
of  judicial  notice  to  speak  of  it  as  "  a  means  of  making  the  court  aware  " 
of  a  fact ;  it  has  to  do  not  merely  with  the  action  of  the  court  when  tlie 
parties  are  seeking  to  move  it,  but  when  alone  and  acting  upon  its  own 
motion.  To  read  a  document  in  court,  orto  listen  to  a  witness  there,  is 
to  deal  with  "  evidence ;  "  and  so  when  an  object  is  submitted  to  the 
judge's  inspection  in  court.  But  the  true  conception  of  what  is  judicially, 
known  is  that  of  something  wliicli  is  not,  or  rather  need  not  bo  unless  the 
tribunal  wislies  it,  the  subject  of  either  evidence  or  argument  — something 
wliich  is  already  in  the  court's  possession,  or  at  any  rate  is  so  accessible 
that  there  is  no  occasion,  unless  the  court  ask  for  it,  to  use  "  any  means  to 
make  tlie  court  aware  "  of  it;  somotiiing  whicli  it  may  deal  with  quite 
uiih;im|)ercd  by  any  rules  of  law.  In  making  this  investigation,  the  judge 
is  emancipated  entirely  from  all  tlic  nili's  of  evidence  laid  down  for  the 
investigation  of  facts  in  general.  Markby,  Notes  to  Indian  Evid.  Act. 
London,  Henry  Frowdo,  1897.  (r)  There  is  sometimes  confusion  between 
judicial  notice  and  insi)Cction,  or  the  dealing  by  a  court  with  what  Ben 


JUDICIAL  NOTICE.  281 

II.  Let  me  illustrate  the  subject  by  a  number  of  classi- 
fied cases  drawn  from  all  periods  of  our  law.  I  shall  risk 
a  suspicion  of  pedantry  for  the  sake  of  emphasizing  the 
main  point. 

1.  Certain  cases  relating  to  the  pleadings  and  matters 
of  record.  In  looking  at  these  the  reader  will  find  con- 
stant illustration  of  what  has  already  been  indicated,  that 
the  right  of  a  court  to  act  upon  what  is  in  point  of  fact 
known  to  it  must  be  subordinate  to  those  requirements 
of  form  and  orderly  communication  which  regulate  the 
mode  of  bringing  controversies  into  court,  and  of  stating 
and  conducting  them.  If  formal  words  are  necessary,  as 
felonice,  viurdravit,  and  hurglariter,  in  the  old  private 
appeals,  and  in  indictments,  you  must  use  them.  If  a 
certain  form  of  action  is  necessary,  you  must  resort  to  it. 
If  a  certain  order  or  time  of  presentation  be  necessary, 
you   must  conform   to   it.     If,  as   regards  the  fulness  of 

tham  calls  "  real  evidence,"  —  a  thing  submitted  directly  to  the  senses  of 
the  tribunal ;  as  in  Stephenson  v.  The  State,  28  Ind.  272  (1867),  where  the 
trial  judge  had  decided  the  question  whether  the  appellant  was  over  four- 
teen years  of  age  b}'  simply  inspecting  him.  He  certified  to  the  upper 
court  that  "as  the  defendant,  being  present  in  court,  presented  .  .  .  the 
appearance  of  a  full-grown  man,  such  proof  [/.  e.,  other  evidence]  was  not 
required."  Of  course  this  was  merely  an  instance  of  settling  a  question 
by  the  use  of  a  certain  sort  of  evidence,  —  and  it  may  be  added  that  it 
was,  at  common  law,  a  very  familiar  way.  Supra,  21,  104.  But  the  upper 
court  describe  the  situation  as  one  where  "  no  proof  whatever  was  offered 
as  to  the  age  of  the  defendant."  "  The  judge  was  not  a  witness,  and  the 
State  is  not  entitled  to  avail  itself  of  his  knowledge,  except  upon  matters 
of  which  the  court  takes  judicial  notice."  The  real  ground  of  tlie  court's 
decision  here  (granting  a  new  trial)  appeared  to  be  that  when  a  jury  or 
trial  judge  decides  a  question  of  fact  in  tiiis  way,  a  party  loses  the  benefit 
of  his  exceptions,  because  there  is  no  way  of  presenting  the  evidence  to 
an  appellate  court  in  such  a  manner  as  to  enable  it  to  judge  of  "  the 
reasonableness  of  the  impression  "  made  upon  the  mind  of  the  lower  tri- 
bunal. It  is  difiicult  to  assent  to  the  court's  conception  of  what  took  place 
at  the  trial,  or  their  view  that  it  is  impossible  to  have  the  full  benefit  of 
exceptions  when  the  trial  court  avails  itself  of  "  real  evidence."  Stephen's 
illustration  of  "  proving  that  it  is  raining  by  telling  the  judge  to  look  out 
of  the  window,"  is  another  instance  of  the  use  of  real  evidence. 


282  LAW   OF   EVIDENCE. 

detail  or  the  precision  of  allegation,  there  be  any  rule  of 
"certainty,"  you  must  conform  to  that.  If  there  be  any 
rule  of  the  substantive  law  as  to  what  constitutes  the 
actionable  or  punishable  thing,  or  what  is  a  defence,  of 
course  the  pleadings  and  the  record  must  come  up  to 
it.  Under  this  general  head  may  be  put  the  following 
cases: — 

(a)  In  1302,^  in  an  assize  of  novel  disseisin  against 
John  de  Wilton  and  others,  a  plea  in  abatement  for  mis- 
nomer was  put  forward :  "  Westcot.  Sir  John  answers  and 
says  that  his  name  is  John  de  Willington;  judgment  of 
the  writ.  .  .  .  Hunt.  Known  by  this  name;  ready,  etc. 
Brompton,  J.  He  is  known  through  all  England  as 
Willington,  and  by  no  other  name,  and  that  well  know 
we;  and  therefore  as  to  John  you  shall  take  nothing  by 
your  writ."  This,  as  we  have  it,  is  giving  judgment  upon 
a  point  of  ordinary  fact  as  being  notorious. 

{h)  In  1332-3,^  in  a  quare  imjjedit  against  the  Dean  and 
Chapter  of  St.  Peter's  at  York,  the  Dean  made  no  appear- 
ance. Counsel  stated  that  he  was  dead,  and  then :  "  Tretve.^ 
Where  notice  comes  that  a  man  is  dead  you  are  not  to  go 
to  judgment  against  him.  It  is  a  notorious  thing  that  the 
Dean  is  dead,  and,  therefore,  you  should  not  go  to  judg- 
ment against  him.  Herle  (C.  J.).  We  cannot  go  to  judg- 
ment upon  a  thing  notorious,  but  only  according  to  what 
the  process  before  us  is.  Basset.  A  quare  im2yedit  was_ 
V)rought  against  H.  de  Stanton,*  and  he  died  pending  the 
writ,  wherefore  the  writ  abated.  Herle.  The  writ  was 
not  abated  by  judgment,  but  the  plaintiff  waived  his  writ 
because  he  knew  that  he  was  dead." 

(c)  In  14/50,''  in  a  quare  iinpedit,  the  declaration  related 
to  a  church  in  Wales,  and  the  writ  was   brought  in  the 

1  Y.  15.  .30  &  31  K(i.  I.  250. 

'^  Y.  n.  7  Ed.  III.  4,  7. 

8  Semhir,  Simon  do  Trcwotliosa,  a  serjeaiit  of  the  period. 

*  llcrleV  prcdoce.sHor  as  Chief  Justice  of  the  Couunon  Tleas. 

'  Y.  B.  35  H.  VI.  30,  35. 


JUDICIAL  NOTICE.  283 

County  of  Hereford.  Littleton,  for  the  defendant,  objected 
that  the  plaintiff  had  not  stated,  either  in  his  account  or 
his  writ,  that  Hereford  adjoined  Wales,  and  the  law  re- 
quired that  the  action  should  be  brought  in  a  county  adjoin- 
ing. But  the  court  held  with  the  plaintiff,  who  insisted 
that  "prima  facie  it  will  be  intended  that  the  County  of 
Hereford  adjoins  Wales  until  the  contrary  is  alleged;  if 
the  defendant  would  take  advantage  of  this,  he  should 
allege  that  the  County  of  Hereford  is  not  adjoining,  or 
otherwise  it  will  be  taken  that  it  is." 

(d)  In  1552-3,^  in  an  action  of  debt  upon  a  statute  the 
defendant  demurred  to  the  declaration  for  misreciting  the 
statute  as  being  of  the  32  H,  VIII.,  while  in  truth  it  was 
of  the  33  H.  VIII.  Saunders,  for  the  plaintiff,  argued: 
"You  judges  have  a  private  knowledge  and  a  judicial 
knowledge  (iin  liryiiate  scyence  et  un  iudyciall  scyeuce)^  and 
of  your  private  knowledge  you  cannot  judge.  .  .  .  [And 
then  he  recites  the  story  of  Gascoigne  and  Henry  IV., 
in  Y.  B.  7  H.  IV.  41  (infra,  291),  adding:]  But  there  he 
could  not  acquit  him  and  give  judgment  of  his  own  private 
knowledge.  But  where  you  have  a  judicial  knowledge, 
there  you  may,  and  you  may  give  judgment  according  to  it. 
As  if  one  be  arraigned  upon  an  indictment  for  an  offence 
which  is  pardoned  by  Parliament,  there  you  ought  not  to 
proceed  in  it  or  give  judgment  if  he  is  found  guilty, 
because  it  appears  to  you  by  your  judicial  knowledge  that 
you  ought  not  to  arraign  him.  For  the  judges  ought  to 
take  notice  (pi'ender  conusance)  of  statutes  which  appear 
to  them  judicially,  although  they  are  not  pleaded;  and  then 
the  misrecital  of  that  whereof  the  judges  ought  to  take 
notice  without  recital  is  not  material."  But  the  court 
held  that  while  the  plaintiff  need  not  recite  the  statute 
"because  it  is  a  general  statute,  and  extends  to  every  one 
of  the  king's  subjects,  and  the  justices  are  bound  to  take 

^  Partridge  v.  Strange,  Plow.  77,  83-84.  It  will  be  remembered  that 
Plowden  was  first  published  in  French  in  1571;  the  translation  first  ap 
peared  about  two  centuries  later,  in  1761. 


284  LAW  OF  EVIDENCE. 

notice  of  it;  .  .  .  [yet]  the  count  should  abate  for  the  mis- 
recital.  .  .  .  For  declarations  ought  to  have  two  things; 
the  first  is  certainty,  in  order  that  the  defendant  may 
know  what  he  is  to  answer  to;  .  .  .  the  otlier  thing  .  .  . 
is  truth.  ...  In  our  case  he  has  grounded  his  action 
upon  a  statute  by  him  recited,  where  it  appears  to  vis  judi- 
cially that  there  is  no  such  statute  made  at  that  time." 
Here  the  court  was  called  upon  to  take  judicial  cognizance 
of  the  date  of  a  statute,  and  they  did  it;  but,  again,  they 
were  restrained  from  giving  the  plaintiff  any  benefit  of  their 
knowledge  by  a  rule  of  pleading.  It  was  not  known  in 
forma  judicii.^ 

(e)  In  1588-9,  in  an  action  of  ejectment,  there  was  a 
special  verdict  which  set  forth  the  founding  of  a  hospital 
by  the  name  of  The  Master  and  Chaplains  of  the  Hospital 
of  Henry  the  Seventh,  late  King  of  England,  of  the  Savoy, 
and  that  afterwards  the  said  master  and  chaplains  being 
seized,  etc.,  leased  the  same  to  the  defendant  by  the  name 
of  W.  H.,  Master  of  the  Hospital  .  .  .  called  the  Savoy. 
And  afterwards  by  their  true  name  they  leased  the  same 
to  Thomas  Fanshawe  the  plaintiff's  lessor,  and  the  ques- 
tion was  whether  the  lease  to  the  defendant  by  the  name 
above  stated  was  good.*^  The  ground  upon  which  the 
judges  went  who  decided,  in  the  Exchequer  of  Pleas,  that 
the  first  lease  was  bad,  and  also  those  who  agreed  with 
them  in  the  Exchequer  Chamber,  seems  to  have  been  that 
a  very  high  degree  of  "  certainty  "  was  required  in  such  a 
case.'     The  case  is  here  cited  mainly  for  the  high-strung 

1   Sufmi,  277. 

-  Marriott  i;.  Pascall,  1  Leon.  159;  ?,.  c.  snh  nom.  Mariot  v.  Mascal, 
1  And.  202,  and  suh  vom.  Fanahawe's  case,  Moore,  228.  The  case  was  hard 
frtiifjht ;  in  the  Exchequer  of  Pleas  it  was  held  (Manwood,  C.  B.,  dissent- 
ing in  a  loiitj  opinion,  pre.served  in  Moore's  Reports)  that  the  first  lease 
was  li.ul.  [ii  the  Exciieqner  Clianiher  the  court  discussed  it  without 
{jivinj^  jmlj^nient,  and  were  divided  in  f)pinion  ;  the  full  opinion  of  An- 
derson (C.  J.  C.  1'.)  is  found  in  his  reports.  But  the  case  was  finally 
Hettind   l)y  tlie  ))artics. 

•''  See  the  <|n:iirit.  iiimLuiI ic  discourse  of  Anderson,  C.  J.,  on  words  and 
names,  in  iiis  long  dpinioii  in  1  And.  208-220. 


JUDICIAL   NOTICE.  285 

reasoning  of  Coke  in  arguing  for  the  plaintiff,  in  the 
Exchequer  Chamber,  against  the  lease:  "If  the  name 
given  to  this  hospital  upon  the  foundation  of  it  and  the 
name  usurped  in  the  lease  be  not  unum,  in  sensu  (not  in 
your  private  understanding  as  private  persons,  but  in  your 
judicial  knowledge  upon  the  record,  quod  coram  vobis 
residet,  as  judges  of  record)  then  this  lease  is  void.  For 
although  you  as  private  persons,  otherwise  than  by  record, 
know  that  the  hospital  of  Savoy  and  the  hospital  vocat. 
le,  Savoy  are  all  one  hospital,  you  ought  not  upon  that 
your  private  knowledge  to  give  judgment,  unless  your 
judicial  knowledge  agree  with  it;  that  is,  the  knowledge 
which  is  out  of  the  records  which  you  have  before  you. 
But  if  the  name  given  upon  the  foundation  and  the  usurped 
name  be  not  idem  sensu  in  your  judicial  knowledge,  and 
you  cannot  otherwise  conceive  the  identity  of  these  two 
hospitals  nor  make  any  construction  to  imagine  it  but  by 
the  record,  for  the  record  is  your  eye  of  justice,  and  you 
have  no  other  eye  to  look  unto  the  cause  depending  before 
you  but  the  record,  and  to  this  purpose  he  cited  the  case 
of  7  H.  IV.  108  [sic,  but  meaning  probably  7  H.  IV. 
41, — which  is  thereupon  inaccurately  stated],  .  .  so  in 
our  case,  it  may  be  that  you  in  your  pidvate  knowledge 
know  that  the  hospital  de  la  Savoij  and  the  hospital  vocat. 
le  Savoy  is  all  one;  but  that  doth  not  appear  unto  you  upon 
the  record  which  is  before  you,  but  it  may  be,  for  any- 
thing that  appears  in  the  record,  that  they  are  diverse  and 
several  hospitals.     Therefore  the  lease  is  void."  ^ 

1  To  all  this  learned  triviality  add  that  of  Manwood,  C.  B.,  in  supporting 
the  case  of  the  defendant  against  another  oI)jection,  namely,  that  the  lease 
was  bad  as  omitting  the  word  late  (nuper),  in  the  designation  of  King 
Henry  VII.  It  is  intended,  he  says,  that  he  who  speaks  of  King  Henry 
VII.  speaks  of  the  late  king  of  that  name,  "  just  as  the  Dean  and  Chapter 
of  Carlisle  was  incorporated  by  the  name  of  the  Dean  and  Chapter  of  the 
Holy  and  undivided  Trinity,  of  Carlisle ;  and  in  the  lease  they  omit  un- 
divided, yet  was  it  good  enough,  .  .  .  and  the  reason  was  because  by  the 
name  of  the  Trinity  the  word  'undivided  '  is  as  strongly  intended  as  if  it 
were  expressed ;  for  everybody  knows  that  the  Trinity  is  undivided,  and 


286  LAW   OF  EVIDENCE. 

(/)  In  1611  an  indictment  alleged  an  arrest  at  London 
on  18  November  "  between  the  hours  of  five  and  six  in  the 
afternoon."  It  was  contended  that  the  arrest  was  illegal 
as  being  in  the  night,  i.  e.,  after  sunset;  but  the  court 
("  all  the  judges  of  England  and  barons  of  the  Exchequer  ") 
"resolved  that  although  in  truth  between  five  and  six 
o'clock  in  November  is  part  of  the  night,  yet  the  court  is 
not  bound  ex  officio  to  take  conusance  of  it,  no  more  than 
in  the  case  of  burglary  without  these  words,  iw  node  .  .  . 
or  noctanter."  ^ 

(ff)  And  again,  under  this  head  belong  such  cases  as 
that  of  Taylor  v.  Barclay,^  where,  on  a  demurrer  to  a  bill 
in  equity  which  alleged  that  the  British  Government  had 
recognized  the  independence  of  the  Federal  Republic  of 
South  America,  the  Vice-Chancellor,  having  informed 
himself  at  the  foreign  office  that  this  was  not  true,  took 
judicial  notice  of  the  fact;  and  he  declined  to  hold  that 
the  admissions  of  the  demurrer  extended  to  what  was  thus 
known  to  the  court  to  be  a  false  allegation. 

2.  A  second  class  of  cases  relates  merely  to  the  con- 
struction of  writings  or  the  interpretation  of  words.  Here 
the  courts  take  notice  of  the  ordinary  meaning  of  language 
and   of  usual   habits  of   speech;  and  they  formerly  took 

so  ill  30  II.  VI.  the  foundation  was  the  Church  of  St.  Peter  and  Paul  the 
Apostles,  and  tlie  lease  omitted  the  Apo.stles,  and  j'et  good,  for  it  is  in- 
tended in  the  plea,  and  all  know  that  Peter  and  Paul  were  Apostles.  So 
also  tlie  lease  is  good  where  tlie  foundation  is  of  the  Blessed  Virgin  Mary 
and  Virgin  is  omitted;  yet  it  is  good,  for  all  men  well  know  that  Mary 
was  hlos.sed  and  a  Virgin." 

1  Mackclley's  case,  9  Co.  &5  a,  67  ;  il>.  62.  Tlie  plirases  here  are  prob- 
ably those  of  the  first  English  edition  of  these  reports  in  165S,  long  after 
Coke's  (loath  in  163.3.  He  published  his  reports  in  Norman  French.  The 
ninth  book  apj)eared  in  1613,  and  the  passage  above  quoted  (not  to  quote 
it  all)  roads  in  the  French  :  "  Le  court,  nest  trniis  ex  officio  a  prender  conu- 
sance do,  ceo  tiii'tit  pluis  f/itc  III  case  de  hnrfihirlc.  sans  ceux  paroles  in  node 
eiusdfiin  iliri,  or  nortanlcr."  In  Trotinan's  "  Epitome  "  of  the  first  eleven 
hooks,  publishe<l  in  1G40,  this  reads  (p.  468),  "  Court  nest  ten  p  prend 
notice  "  etc. 

■■i  2  Sim.  213  (1828). 


JUDICIAL  NOTICE.  287 

notice,  not  merely,  as   now,  of  the  general  meaning,  but 
also  of  the  local  use  of  language.^ 

(a)  In  1536,"  in  holding  good  the  condition  of  a  bond  to 
pay  seven  pounds  to  the  obligor's  own  wife,  Fitzherbert, 
J.,  says:  "The  meaning  and  intent  of  the  parties  shall 
be  taken;  for  I  have  seen  this  case  adjudged:  Two  made 
a  contract  for  eighteen  barrels  of  ale,  .  .  .  and  the  buyer 
would  have  had  the  barrels  when  the  ale  was  gone;  adjudged 
that  he  should  not,  because  it  is  commonly  used  that  the 
seller  should  have  them,  and  it  was  not  the  intent  of  the 
parties  that  the  buyer  should  have  the  barrels  but  only 
the  ale.  Suppose  I  make  a  covenant  with  you  that  if  you 
come  to  my  house  I  will  give  you  a  cup  of  wine;  if  you 
come  you  shall  not  have  the  cup,  for  it  cannot  be  intended 
(entend)  that  my  intent  was  to  give  you  the  cup." 

(i)  In  1611,^  on  the  defendant's  demurrer,  in  an  action 
of  debt  on  a  bond,  —  in  passing  upon  the  meaning  of  these 
words  in  the  condition,  namely,  "which  should  be  levied," 
Fleming,  C.  J.,  laid  it  down  that,  "as  touching  construc- 
tion of  words  they  shall  be  taken  according  to  the  .  .  . 
intent  of  parties,  .  .  .  and  this  intention  and  construction 
of  words  shall  be  taken  according  to  the  vulgar  and  usual 
sense,  phrase,  and  manner  of  speech  of  these  words  and 
of  that  place  where  the  words  are  spoken."  In  this  case, 
while  there  was  no  averment  that  the  words  had  any  pecu- 
liar local  meaning,  the  argument  .of  counsel  was  in  the 
terms  adopted  by  the  court  and  just  quoted,  and  he  illus- 
trated thus :  "  As  in  Lincolnshire  where  eight  strikes  make 
a  bushel,  the  judges  of  the  common  law  are  for  to  take 
notice  of  particular  usages  in  several  places,  as  of  London 
measure  in  buying  of   cloth  there." 

(c)  And  so  in  1613  and  1623,  in  actions  on  the  case  (1) 
for  not  delivering  "20  Cumbos  tritici,"  "though  it  is  not 
averred  by  any  Anglice  quid   est    Gumbos,   yet  the  court 

1  See  McGregor  v.  Gregory,  11  M.  &  W.  p.  295. 

2  Y.  B.  27  H.  VIII.  27,  12. 

3  Hewet  V.  Painter,  1  Bui.  174. 


288  LAW  OF  EVIDENCE. 

ought  to  take  notice  thereof,  being  the  phrase  of  the  coun- 
try of  Norfolk  and  Suffolk  and  other  places,  and  there 
well  known  5  "  (2)  upon  a  sale  of  "  quosdam  carrucas  slgnatas, 
Anglice  car-rooms,  though  it  is  not  averred  what  is  in- 
tended by  the  word  '  car-rooms  '  nor  what  it  signifies,  yet 
the  declaration  is  good ;  for  it  is  a  phrase  in  London  well 
known,  of  which  the  court  ought  to  take  notice,  this  being 
a  phrase  of  the  country."  ^ 

{d)  There  was  a  set  of  cases  where  the  courts,  for  the 
purpose  of  checking  a  particular  kind  of  action,  adopted  a 
rule  which  refused  to  give  effect  to  the  ordinary  meaning 
of  words,  and  persisted  for  many  years  in  considering  only 
whether  they  could  not  be  made  to  bear  some  other 
meaning.  Actions  for  defamation,  which  were  a  slip 
transplanted  from  the  popular  and  ecclesiastical  courts, 
started  into  such  a  savage  luxuriance  of  growth  in  the 
king's  courts,  in  the  sixteenth  and  seventeenth  centuries, 
that  the  judges  appear  to  have  been  frightened.^  For 
many  years  they  did  their  best  to  discourage  the  action  by 
applying  a  rule  that  the  words  should  be  taken  in  mitiori 
se7isu.  For  example,  it  was  held  that  it  was  not  action- 
able, as  imputing  crime,  to  say  of  another,^  "Thou  hast 
stolen  by  the  highway  side,"  for  it  might  be  taken  that 
he  came  unawares  upon  some  one  by  the  highway,  or  that 
he  stole  a  stick  under  a  hedge;  or  to  say,*  "Holt  struck 
his  cook  on  the  head  with  a  cleaver  and  cleaved  his  head; 

1  Rollo's  Ah.,  Court,  C.  6,  7.  "  By  car-rooms,"  adds  Ilolle,  "is  intended 
a  mark  wliicli  the  Lord  Mayor  puts  upon  a  cart." 

2  Sec  Professor  Maitland's  admiral)le  little  ])a])er  on  "  Slander  in  the 
Miiliile  Af^es,"  in  the  (Jreen  Haj;,  ii.  4  (January,  1890).  As  late  as  1671 
wc  finil  Van^han,  C.  J.,  sayinpj,  in  King  v.  Lake  (2  Vcntris,  '28),  in  an  ac- 
tion of  sland(ir :  "  Tlic  growth  of  tliese  actions  will  spoil  all  communi- 
cations; a  man  sliall  not  say  such  an  inn  or  such  wine  is  not  good.  Their 
progress  extends  to  all  iirofossions.  .  .  .  The  words  si)oken  here  have  no 
more  ndatiim  tn  thr  plaiiiliff's  profession,  than  to  say  of  a  lawyer  he  hath 
a  rod  nose,  or  Imt,  a  liltle  head."     Vanghan  was  dissenting. 

"  Hrough  ('.  Dcnnison,  (ioldshorough,  14.')  (IGOl). 
*  llolty.  Astgrigg,  Cro.  Jac.  184  (1007). 


JUDICIAL  NOTICE.  289 

the  one  part  lay  on  the  one  shoulder  and  another  part  on 
the  other,"  for  "the  party  may  yet  be  living,  and  it  is  then 
but  trespass;"  and  again,  in  1615-16,^  where  one  was 
charged  with  saying  of  another,  "Thou  art  a  thief,  for 
thou  hast  stolen  me  (defendant  innuendo)  a  hundred  of 
slatte,"  it  was  held  not  actionable.  The  plaintiff's  coun- 
sel in  vain  urged  that  this  form  of  expression  was  "Ze 
nsaall  phrase  del  pates  ;''  Coke,  C.  J.,  answered  that  he 
should  have  averred  this,  "  otherwise  we  cannot  take  notice 
of  it,  for  I  do  not  know  tliat  it  is  a  usual  phrase  in  the 
country.  It  seems  to  me  that  the  words  are  insensible, 
for  it  is  clear  that  the  first  words  are  not  actionable,  sciL, 
'  thou  hast  stolen  me, '  for  it  is  not  felony  to  steal  a  man, 
although  it  is  to  steal  some  women."  At  Easter,  in  1616, 
plaintiff's  counsel  again  brought  up  the  case  and  said,  "ceo 
est  un  usiiall  p/irase,  come  en  le  Scripture,  Fetch  me  a  kidd 
from  the  flock."  ^  Doderidge,  J.:  "That  is /or  me,  and 
not  from  me."  The  counsel  urged  that  either  way  was 
good  enough  for  him.  Doderidge,  J. :  "  It  is  uncertain 
how  it  should  be  taken,  and  therefore  the  action  lies  not, 
for  the  discredit  of  sucli  actions ; "  and  judgment  was 
given  accordingly  against  the  plaintiff.^ 

1  White  V.  Brough,  1  Rolle,  286. 

2  Shakespeare  had  just  died,  almost  on  the  first  day  of  this  very  Easter 
term.  Would  Coke,  we  may  wonder,  have  recognized  Prince  Henry's 
description  of  Hotspur,  "  He  that  kills  me  some  six  or  seven  dozen  of 
Scots  at  a  breakfast,"  or  tlie  many  other  like  phrases  that  are  now  so 
familiar  to  us,  —  "Rob  me  the  exchequer,"  "He  smiled  me  in  the  face," 
"  How  this  river  comes  me  cranking  in,"  and  the  like  ?  The  Chief  Jus- 
tice might  have  found  liis  own  attitude  and  that  of  the  courts  hit  off  in 
the  dialogue  between  Petruchio  and  his  serving  man.  "  Pet.  Knock  me 
liere  soundly.  Grumio.  Knock  j'ou  here,  sir?  Why,  sir,  what  am  I,  sir,  tliat 
I  should  knock  you  here,  sir?  Pet.  Villain,  I  say,  knock  me  at  tliis  gate, 
and  rap  me  well,  or  I  '11  knock  your  knave's  pate.  .  .  .  Pet.  I  bade  the 
rascal  knock  upon  your  gate,  and  could  not  get  liim  for  my  heart  to  do  it. 
Grumio.  Knock  at  the  gate!  O  heaveus!  Spake  you  not  these  words 
plain  :  '  Sirrah,  knock  me  here,  rap  me  here,  knock  me  well,  and  knock  me 
soundly '"?  and  come  you  now  with  knocking  at  the  gate?  " 

3  Compare  also  the  amusing  effort  of  counsel  in  Southold  v.  Dounston, 
Cro.  Car.  269  (1633). 

19 


290  LAW   OF  EVIDENCE. 

The  effort  of  the  court  in  such  cases  and  their  point  of 
view  may  be  illustrated  by  well-known  practices  of  the 
courts  in  some  classes  of  modern  cases.  "Dilatory  pleas," 
said  the  Supreme  Court  of  Maine,  in  a  recent  case,^  "are 
allowed  because  sometimes  useful,  and  promotive  of  justice. 
But  for  the  reason  that  they  are  often  resorted  to  for 
inequitable  purposes,  the  law  does  not  favor  them;"  and 
thereupon  it  was  held  that  a  plea  in  abatement  was  bad 
which,  having  begun  with  praying  "judgment  of  the 
writ,"  ended  with  praying  "judg.  of  said  writ."  "This 
abbreviated  expression  'judg.,'"  said  the  court,  "cannot 
be  accepted  for  the  word  '  judgment. '  It  may  stand  for 
other  words  as  well  as  for  that." 

(e)  In  the  well-known  and  sometimes  misquoted  case  of 
Hoare  v.  Silverlock,^  the  court  neatly  made  a  familiar 
discrimination  in  applying  the  doctrine  of  judicial  notice. 
In  an  action  for  libel,  in  saying  of  the  plaintiff  in  a  news- 
paper that  certain  persons  dealing  with  her  "had  realized 
the  fable  of  the  Frozen  Snake,"  after  a  verdict  for  the 
plaintiff,  the  court  declined  to  arrest  the  judgment.  Lord 
Dennian  remarked:  "We  are  not  called  upon  here  to 
take  judicial  notice  that  the  term  '  Frozen  Snake  '  had 
or  had  not  the  meaning  ascribed  to  it  by  the  plaintiff,  but 
to  say,  after  verdict,  whether  or  not  a  jury  were  certainly 
wrong  in  assuming  that  those  words  had  the  particular 
meaning." 

There  is  no  need  to  add  to  this  class  of  cases.  Nothing 
is  more  familiar''' than  the  spectacle  of  courts  construing 
wills,  deeds,  contracts,  or  statutes  upon  their  own  knowl- 

1  Cassidy  v.  Holl)r<)()k,  81  Mo.  589  (1889),  per  Tcters,  C.  J. 

2  12  Q.  li.  G24  (1848).  Of  the  saino  character  is  tlie  case  of  Capital 
and  Counties  Bank  v.  llonty,  7  App.  Cas.  741,  where  the  question  was  pre- 
sented in  a  Himilar  way,  but  tiio  judgment  was  arrested. 

3  Nelson  v.  ChisiiinK,  2  Cnsh.  519,  53.3 ;  Atty.-Gen.  ;•.  Duhlin,  .'58  N.  TI. 
459,  513  ;  Meyer  v.  Artliur,  91  U.  S.  570;  Tindal.  C.  J.,  in  Sliore  v.  Wil- 
Bon,  9  CI.  &  F.  p.  5f)9 ;  Howes  r.  Shand,  2  App.  Cas.  455  ;  Tow,c;ood  v. 
ririe,  35  W.  11.  729;  Union  I'ac.   R.  U.  Co.  v.  Hall,  91   U.  S.  343! 


JUDICIAL  NOTICE.  291 

edge  of  the  import  of  words;  and  nothing  is  more  neces- 
sary. 

3.    I  will  add  several  miscellaneous  cases. 

(a)  In  1406,^  in  a  discussion  over  arresting  judgment  on 
the  ground  that  the  facts  appeared  of  record  to  be  other- 
wise than  as  the  jury  had  found,  Gascoigne,  C.  J.,  said: 
"Certainly  if  I  had  been  sworn  on  the  same  inquest  I 
should,  upon  the  evidence  shown  on  the  King's  part,  have 
found  for  him  [^.  e.,  against  the  actual  verdict].  Tirwhit. 
Sir,  suppose  a  man  killed  another  in  your  presence  and 
actual  sight,  and  another  who  is  not  guilty  is  indicted 
before  you  and  found  guilty.  You  ought  to  respite  the 
judgment  against  him,  for  you  know  the  contrary,  and  to 
inform  the  King,  that  he  may  pardon  (faire  grace).  No 
more  in  this  case  .  .  .  for  you  are  apprised  of  the  record. 
.  .  .  Gascoigne.  Once  the  King  himself  questioned  me 
as  to  this  case  which  you  put,  and  asked  me  what  the  law 
was ;  and  I  told  him  as  you  say.  And  he  was  well  pleased 
that  the  law  was  so."  ^ 

(b)  A  well-known  set  of  cases  has  to  do  with  the 
calendar  and  certain  sorts  of  fact  ordinarily  given  in 
almanacs.  When  the  books  talk  about  "the  calendar," 
they  refer  sometimes  to  the  mere  order  and  arrangement  of 
days,  and  especially  saints'  days  and  ecclesiastical  feasts, 
by  which  the  terms  and  days  of  court  were  regulated;  and 
sometimes  to  the  books  or  written  or  printed  tables  in 
which  this  order  was  set  down.  The  courts  of  necessity 
recognized  without  proof  the  established  order  and  arrange- 

1  Y.  B.  7  H.  IV.  41,  .5. 

2  This  was  an  aucieut  question.  I  am  indehterl  to  the  kindness  of 
Professor  Holland  of  Oxford  for  a  reference  to  a  dispute  upon  it  at  Paris 
in  1166-69,  by  Giraldus  Cambrensis,  —  utrum  judex  secundum  allcfjafd 
jndicare  debeat,  an  juxta  conscientiam.  Gir.  Camb.  Opera,  ed.  Brewer,  Rolls 
Series,  i.  47.  Professor  Holland  adds  that  "  the  question  was  one  of  those 
mooted  by  the  Oxford  lawyers  on  the  occasion  of  a  royal  visit  in  1605. 
Albericus  Gentilis  was  the  Regius  professor,  and  the  topic  was  a  favorite 
one  with  him.  It  is  the  subject  of  Disp.  "VI.  (pp.  72-95)  in  his  Disputa- 
tionum  Decas  Prima,  Londini,  ^Yolfius,  1587,  an  exceedingly  rare  book." 


292  LAW  OF  EVIDENCE. 

ment  of  days;  the  phrase  was  that  "the  calendar  was  part 
of  the  law  of  England ; "  and  so  it  was  said  of  "  the 
almanac."^  In  the  multitude  and  multiplication  of  saints 
and  saints'  days,  and  the  intricacies  attending  upon  the 
notion  of  movable  feasts,  and  the  arrangement  of  the 
Council  of  Nice  fixing  Easter  by  the  relation  of  the  moon 
to  a  certain  date  in  March,  it  was  no  easy  matter  to  find 
out  the  details  of  the  calendar  for  any  given  year;  so  that 
the  courts  were  assisted  by  written  and  printed  tables 
of  more  or  less  authority.  In  the  Black  Book  of  the 
Exchequer  there  is  preserved  a  calendar  and  a  list  of 
dominical  letters,  dating  back,  perhaps,  as  far  as  1187.^ 
This  may  well  have  been  the  official  memorandum  of 
the  Exchequer.  Since  the  courts  found  it  convenient  or 
necessary  to  rely  upon  such  tables,  the  notion  of  taking 
judicial  notice  of  the  order  of  days  was  easily  transferred 
to  the  table  which  set  it  forth.  In  1493-4,  on  a  writ  of 
error,  a  question  arose  over  the  continuance  of  a  case  to 
the  Monday  before  St.  Boniface's  day.  There  was  only 
one  St.  Boniface  in  the  "mertlage,"  and  apparently  only 
one  was  generally  recognized;  but  in  the  printed  calendar 
there  were  two.  The  court  finally  held  the  continuance 
good.  I  give  a  translation  of  this  early  case  in  a  note.  It 
is  curious  as  showing  an  early  reference  in  our  reports  to  a 
printed  calendar,  and  as  showing  the  perplexity  that  such 
questions  might  cause  at  that  period.*    In  1704,*  when  a 

1  Qucpii  V.  Dyer,  6  Mod.  41  (1703) ;  Page  v.  Faucet,  1  Leon.  242  (1587) ; 
s.  c.  Cro.  Kliz.  227  ;  Co.  of  Stationers  v.  Seymour,  1  Mod.  256  (1677). 

2  Bond's  Handy  Book  of  Dates,  68. 

•■'  Y.  H.  9  II.  VII.  14,  1.     "A  writ  of  error  was  brought,  and  error  was 
assigned,  in  that  one  brought  an  action  of  debt  in  a  court  whicli  was  granted 


*  Harvey  r.  Broad,  6  Mod.  159;  s.  c.  (6.  196.  "The  Almanack  to  go 
by  is  that  wliich  is  annexed  to  the  Common  Prayer-book."  Holt,  C.  .)., 
in  Brongh  v.  IVrkins,  fi  Mod.  81  (170.'?).  And  see  Tutton  v.  Darke,  5  H. 
&  N.  647  ;  Nixon  r.  Freeman,  ih.  652.  Nowadays,  in  referring  to  the 
almanac,  courts  iiave  as  little  tliought  of  any  particular  edition  as  tliey 
have  when  they  cite  the  Bible  or  J<>8op'»  Fables. 


JUDICIAL  NOTICE.  293 

writ  of  inquiry  was  returnable  tres  TrhiUatis,  and  was 
returned   executed  June  14,  whicli  was   ou   Monday,  the 

by  patent,  and  had  a  day  of  continuance  till  Monday  next  before  St.  Boni- 
face's day ;  and  the  defendant  pleaded,  .  .  .  and  on  Monday  next  the  de- 
fendant appeared;  found  against  him;  and  assigned  for  error,  that  St. 
Boniface's  day  was  past  before  the  day  given  as  '  Monday  next  before  St. 
Boniface.'  In  fact,  there  were  two  St.  Boniface's  days  in  the  printed  calen- 
dar, and  in  the  mertlage  only  one  Boniface.  It  was  moved  whether  this 
be  error  or  not.  Kingsmil.  Althougli  there  are  not  two  Bonifaces  in  every 
book,  if  there  be  two  Bonifaces,  the  continuance  is  good.  There  are  two 
in  the  calendar ;  and  so  the  continuance  is  good  and  will  be  referred  to 
the  Boniface  who  is  to  come  and  not  the  one  past.  There  are  divers 
saints  who  are  not  in  the  calendar,  and  yet  a  continuance  to  such  and  such 
a  day  of  such  and  such  a  saint  is  good  if  any  such  saint  there  be.  As  St. 
Swithin  here  at  Winchester  is  not  in  tlie  calendar  yet  a  continuance  to 
this  day  is  good ;  .  .  .  for  if  the  day  be  known  there,  it  is  enough  though 
it  be  not  in  the  calendar.  (Which  the  justices  agreed  to.)  They  say 
there  are  a  hundred  saints  who  are  not  in  the  calendar ;  people,  also,  hei'S 
in  the  Soutli  do  not  recognize  them ;  and  yet  the  continuance  to  one  of  the 
days  is  good.  Just  so  there  are  two  Bonifaces,  and  the  printed  calendar 
proves  it.  Wherefore,  etc.  Huston  [argued]  to  the  contrary,  and  [said] 
in  the  mertlage  there  is  only  one.  Hussey  [C.  J.].  What  do  you  mean 
by  this  mertlage  ?  What  is  it  ?  Huston.  It  is  a  calendar  universal  in  the 
church  of  this  realm,  which  priests  are  bound  to  keep,  and  no  other  {nierit 
pluis)  ;  and  although  a  new  saint  were  canonized  beyond  sea,  there  is  no 
reason  why  people  are  bound  to  recognize  him ;  and  so  a  continuance  to 
such  a  saint's  day  is  not  good.  So  here,  for  in  this  realm  there  is  only  one 
Boniface,  and  whetlier  there  are  [anywhere]  two  or  not,  I  know  not,  but 
it  seems  not,  for  he  is  not  in  the  mertlage.  The  printed  calendar  is  not  to 
the  purpose,  and  may  be  false ;  and  maybe  there  are  two  Bonifaces  be- 
yond sea  and  only  one  in  England.  The  judges  sent  to  the  Common 
Bench  about  the  matter.  Brian  [C.  J.  C.  B.]  thought  the  continuance 
not  good  unless  two  Bonifaces  were  recognized  in  England  and  in  the 
mertlage ;  or  at  least  recognized,  for  the  printed  calendar  is  of  no  author- 
ity. Vavisor  [Justice  of  the  C.  B.]  to  the  contrary.  And  we  were  in 
doubt  (fuimus  in  doubt).  Those  in  the  King's  Bench  held  the  continu- 
ance good."  I  have  followed  an  edition  of  1.597;  the  Maynard  edition 
appears  to  have  various  misprints.  For  "mertlage"  see  Ducange; 
Martilagium  et  Martilegiuin,  and  Matrilogiuni,  pro  irartijrologium,  —  a 
martyrology,  i.  e.  (as  among  the  books  ordinarily  kept  in  churches  and 
monasteries),  "a  calendar  in  wliich  were  set  against  particular  days  the 
names  of  the  saints  and  martyrs  to  be  thereupon  commemorated."  Hub- 
back,  Evidence  of  Succession,  57.5.  For  getting  on  the  track  of  this 
ecclesiastical   slang  "mertlage,"  I  am   indebted  to   my   late  colleague 


294  LAW  OF  EVIDENCE. 

day  after  the  return  day,  the  court  held  that  they  must 
judicially  take  notice  that  tres  THnitatis  was  on  a  Sunda}', 
and  equally  although  it  was  not  assigned  for  error  on  the 
record.  "Holt,  C.  J. :  At  the  Council  of  Nice  they  made 
a  calculation  movable  for  Easter  forever,  and  that  is 
received  here  in  England  and  becomes  part  of  the  law; 
and  so  is  the  calendar  established  by  act  of  Parliament. 
And  can  we  take  notice  of  a  feast,  without  telling  what 
day  of  the  month  it  is  ?  Shall  we  take  notice  of  it 
because  you  show  it  on  the  record  and  not  when  we  see  it 
as  plainly  without  your  telling  ? "  There  are  also  cases 
where  courts  judicially  notice  any  common  almanacs  as 
being  accurate  sources  of  information  for  such  facts  as  the 
time  of  the  setting  and  rising  of  the  sun  and  moon;  or,  as 
it  is  sometimes  put,  these  courts  notice  without  proof  the 
facts  themselves.^ 

(c)  In  Brown  v.  Piper, '^  on  an  appeal  in  equity  from  a 
Circuit  Court,  where  the  plaintiff  asked  for  an  injunction 
to  restrain  the  defendant  from  infringing  a  patent  for  pre- 
serving fish  and  other  articles,  the  Supreme  Court  of  the 
United  States,  having  in  this  case  the  duty  of  passing 
upon  facts  as  well  as  law,  reversed  a  decree  for  the  plain- 
tiff on  the  ground  that  his  invention  lacked  novelty. 
They  adverted  to  a  matter  of  fact  which  was  nowhere 
mentioned  in  pleadings  or  proof.  The  patent  was  for 
preserving  fish  and  other  articles  in  a  close  chamber, 
by  a  freezing  mixture  having  no  contact  with  the  atmos- 
phere of  the  preserving  chamber.  The  Supreme  Court 
called  to  mind  something  which  is  in  all  men's  knowl- 
edge as  being  old,  in  daily  use,  and  involving  the  same 
principle;  namely,  the  common  ice-cream  freezer.    Of  this 

I'rofes.sor  Cliild,  to  whoso  learnin;;  aud  generosity  in  tlie  use  of  it  his 
friends  were  often  under  obligations. 

1  reoj)lc  V.  Chce  Kee,  61  Cal.  404;  State  v.  Morris,  47  Conn.  179; 
Munshower  v.  Tiic  State,  55  Md.  11  ;  aliter,  Collier  v.  Nokes,  2  C.  «Sb  K. 
1012. 

2  91  U.  S.  37;  aud  so  riiillip.s  o.  ])otroit,  111  U.  S.  C04. 


JUDICIAL   NOTICE.  295 

and  of  the  preservative  effect  of  cold,  they  said,  we  take 
judicial  notice,  and  will  deal  with  it  as  if  set  up  in  the 
answer  and  fully  proved:  "We  think  this  patent  was  void 
on  its  face,  and  that  the  court  might  have  stopped  short 
at  that  instrument,  and  without  looking  bej'ond  it  into  the 
answers  and  testimony,  sua  sponte,  if  the  objections  were 
not  taken  by  counsel,  well  have  adjudged  in  favor  of  the 
defendant." 

(e)  A  few  years  ago,  the  Court  of  Appeals  of  New 
York,^  on  the  question  of  whether  the  facts  would  sup- 
port the  verdict,  reversed  a  judgment  for  the  plaintiff,  in 
an  action  for  personal  injuries  received  while  passing 
through  a  tunnel  on  the  top  of  a  freight  car,  in  the 
defendants'  service  as  a  brakeman.  The  height  of  the 
tunnel  was  considerably  lessened,  in  the  interior  of  it,  by 
an  arch  not  visible  at  the  entrance  but  beginning  two 
hundred  feet  from  it,  inside;  and  of  this  lessening  the 
plaintiff  had  no  notice.  The  injuries  appeared  to  have 
come  from  striking  the  plaintiff's  head  against  the  arch. 
But  his  own  testimony  was  that  he  was  sitting  when  the 
accident  happened;  and  the  distance  between  the  top  of 
the  car  and  the  inside  of  the  arch  at  the  top  was  four  feet 
and  seven  inches.  The  trial  judge  had  left  it  to  the  jury 
that,  "  If  the  plaintiff  was  sitting  down,  it  is  for  you  to 
say  whether  his  head  would  reach  to  that  height."  After 
verdict  and  judgment  the  defendants  appealed,  and  the 
Court  of  Appeals  put  the  question  thus :  "  Whether  we 
will  accept  that  finding  ...  or  whether  we  will  take 
judicial  notice  of  the  height  of  the  human  body  and  the 
measurements  of  its  separate  parts,  and  .  .  .  reverse  a 
judgment  that  is  based  upon  a  finding  clearly  contrary  to 
the  laws  of  nature."  In  proceeding  to  grant  a  new  trial, 
the  court  took  judicial  notice  that  the  average  height  of 
man  is  less  than  six  feet,  and  the  average  length  of  the 
human  trunk  to  the  top  of  the  head  is  less  than  three  feet, 
and  that  men  differ  in  height  mainly  from  a  difference  in 
1  Hunter  v.  N.  Y.,  0.  &  W.  Ry.  Co ,  116  N.  Y.  615  (1889). 


296  LAW   OF   EVIDENCE. 

the  length  of  their  legs;  that  this  plaintiff  could  not  have 
struck  his  forehead  against  the  arch  while  sitting,  unless 
he  were  at  least  nine  feet  high,  and  that  there  is  no 
authenticated  instance  in  human  history  of  any  such 
height;  that  while  the  plaintiff  may  have  been  a  tall  man 
and  the  jury  may  properly  have  acted  upon  their  inspec- 
tion of  him,  "  a  fact  so  rare  in  the  course  of  nature  should 
be  made  apparent,  in  some  way,  on  the  record."  ^ 

So  far  these  cases  have  related  to  the  functions  of  the 
court.  As  regards,  however,  our  modern  jury,  the  same 
considerations  apply  to  them ;  for  now  they  also  are  judi- 
cial officers,  bound  to  act  only  upon  the  evidence  which  is 
given  to  them  under  the  eye  of  the  judge. ^  But  as  the 
jury  is  bound  to  keep  within  the  restrictions  imposed 
upon  courts  by  the  principle  of  judicial  notice,  so  also  it 
has  the  liberty  which  that  principle  allows  to  courts.  The 
circumstance  that  the  jury  is  a  subordinate  tribunal  does 
not  change  the  nature  of  their  office;  it  merely  subjects 
them  in  many  of  the  details  and  particulars  of  it  to  the 
direction  of  the  judge.  We  find  this  principle  abundantly 
recognized  in  our  law;  as  in  a  case  where,  on  an  indict- 

^  Tlie  opiniou  lias  an  aspect  of  nicety.  Might  not  the  brakeman  justly 
have  been  regarded  by  liiniself  and  by  the  jnry  as  "  sitting,"  although  at 
a  given  moment  he  was  shifting  his  jjosition,  and  so  raising  himself  mo- 
mentarily a  foot  or  two  above  his  sitting  height  ?  The  tunnel  at  its  en- 
trance was  more  than  four  feet  higher  than  the  arch,  and  seemed  to  allow 
him  a  good  margin.  Two  judges,  Bradley  and  Vann,  dissented,  on  the 
ground  that  the  point  on  which  the  decision  turns  "  was  not  specifically 
raised  at  the  trial,  and  it  does  not  necessarily  appear  that  it  might  not 
have  been  obviated  if  it  had  been  so  raised  there  "  On  a  second  trial  the 
brakeman  testified  that  "  lie  rose  up  as  he  entered  the  tunnel,"  and  a  new 
verdict  for  the  jdaintiff  was  not  disturbed.     Jh.  10  N.  Y.  Sup.  79.5  (1890). 

-  "  A  jury,"  said  Mr.  Justice  Gricr,  speaking  fur  the  Supreme  Court  of 
the  United  Slates  in  18.50,  has  no  right  to  assume  the  truth  of  any  ma- 
terial f:i(l  \\  ithiiHt  some  evidence  legally  snflicient  to  establish  it.  It  is 
thorefoH!  (irrur  in  tlu;  court  to  instruct  the  jury  tli.at  they  may  find  a  ma- 
terial fact  of  wiiicli  llicre  is  no  evidence  from  which  it  may  be  legally 
inferred."  I'arks  i-.  IJo.ss,  11  How.  .302,  ;\1:\  ;  and  see  Schmidt  v.  Ins.  Co., 
1  Gray,  529.    This,  as  we  liave  seen,  is  a  moderu  doctrine.     Supra,  170. 


JUDICIAL   NOTICE.  .  297 

ment  for  the  sale  of  intoxicating  liquor,  the  court  below 
refused  the  defendant's  request  for  an  instruction  that 
evidence  of  a  sale  of  gin  was  not  enough,  without  further 
evidence  that  gin  was  intoxicating;  and  this  refusal  was 
sustained  on  exceptions.  Jurors,  said  Mr.  Justice  Metcalf, 
*'are  allowed  to  act  upon  matters  within  their  general 
knowledge  without  any  testimony  on  those  matters."^ 
On  the  other  hand,  the  restraining  operation  of  this  doc- 
trine was  applied  by  the  same  court,  a  little  later,  to  a 
question  about  the  character  of  witnesses.  The  plaintiff 
in  his  closing  argument  appealed  to  the  personal  knowl- 
edge of  some  of  the  jury,  that  the  general  character  of 
certain  witnesses  was  "so  infamously  bad"  as  to  make 
them  unworthy  of  belief;  but  the  trial  judge  instructed 
the  jury  that  they  could  not  act  upon  such  knowledge 
unless  it  were  testified  in  court;  and  this  ruling  was  sus- 
tained.^ In  all  cases  where  a  jury  has  to  estimate  damages 
and  to  act  upon  expert  testimony,  their  power  is  recognized 
of  bringing  into  play  that  general  fund  of  experience  and 
knowledge  which  in  theory  is  always  imputed  to  them, 
and  on  which,  in  reality,  they  must  in  all  cases  draw. 
This  was  formally  held  in  1881  by  the  Supreme  Court  of 
the  United  States,  in  a  case  where  experts  had  testified  to 
the  value  of  a  lawyer's  professional  services.^  And  the 
court  cited  with  approval  a  case  in  which  Chief  Justice 
Shaw,    speaking   of   the   question   of   damages   in  trover, 

1  Com.  V.  Peckham,  2  Gray,  514.  And  he  continued,  with  that  well- 
known  touch  which  gives  character  to  his  opinions :  "  Now  everybody  who 
knows  what  gin  is,  knows  not  only  that  it  is  a  liquor,  but  also  that  it  is 
intoxicating.  And  it  might  as  well  have  been  objected  that  the  jury  could 
not  find  that  gin  was  a  liquor  without  evidence  tliat  it  was  not  a  solid  sub- 
stance, as  that  they  could  not  find  that  it  Mas  intoxicating  witliout  te.sti- 
mony  to  show  it  to  be  so.  No  jiiry  can  be  supposed  to  be  so  ignorant  as 
not  to  known  what  gin  is.  Proof,  therefore,  that  the  defendant  sold  gin 
is  proof  that  he  sold  intoxicating  liquor.  If  what  he  sold  was  not  intoxi 
eating  liquor,  it  was  not  gin."     Compare  Hoare  v.  Silverlock,  supra,  290. 

2  Schmidt  v.  Ins.  Co.,  1  Gray,  529,  531,  535. 
8  Head  v.  Hargrave,  105  U.  S.  45. 


298  LAW  OF  EVIDENCE. 

remarked:  "The  jury  may  properly  exercise  their  own 
judgment  and  apply  their  own  knowledge  and  experience 
in  regard  to  the  general  subject  of  inquiry.  .  .  .  The 
jury  were  not  bound  by  the  opinion  of  the  witness;  they 
might  have  taken  the  facts  testified  by  him  as  to  the  cost, 
quality,  and  condition  of  the  goods,  and  come  to  a  differ- 
ent opinion  as  to  their  value."  The  operation  of  the  same 
principle  in  supplementing  evidence,  came  out  neatly  in 
a  case  where  woollen  goods  of  a  certain  value  had  been 
soaked  or  otherwise  injured  by  salt-water  and  soda  ash, 
and  no  admissible  evidence  was  before  the  jury  going  to 
the  precise  amount  of  the  damage;  they  fixed  it  at  $500; 
and  the  court  allowed  this  to  stand,  on  the  ground  that 
they  could  not  say  but  that  the  jury  might,  "as  a  matter 
of  common  experience,"  find  the  damage  to  be  not  less 
than  the  amount  named. ^  In  an  older  case  the  refined 
doctrine  is  put  forward  that  a  jury  may  be  referred  to 
their  own  knowledge  of  facts,  when  once  they  have  been 
sufficiently  proved  by  admissible  evidence,  in  confirmation 
of  this  evidence.^ 

At  the  end  of  this  collection  of  instances,  illustrating 
the  application  of  the  doctrine  of  judicial  notice  through  a 
long  period  of  time  and  in  a  wide  variety  of  relations,  I 
will  repeat  what  they  help  to  illustrate,  that  this  topic  has 
its  proper  place,  not  in  the  law  of  evidence  or  of  plead- 
ing, or  in  any  other  particular  department  in  our  ordinary 
classification  of  the  law,  but  wherever  the  judicial  func- 
tion has  a  place.  And,  in  particular,  as  regards  the  law  of 
evidence,  that  the  question  of  what  the  judicial  tribunal 
may  or  must  take  knowledge  of  without  evidence  or  argu- 
ment, is  like  another  highly  important  question,  viz.,  what 
must  be  proved  in  order  to  sustain  any  particular  action; 
these  things  are  very  necessary  to  be  known  when  one 
would  apply  the  law  of  evidence,  but  they  must  be  learned 
elsewhere. 

1  Brailfonl  ;;.  Cuiiani  (Jo.,  I47  Mass.  55. 

2  R.  V.  Suttou,  4  M.  &  S.  532. 


JUDICIAL  NOTICE.  299 

III.  What  are  the  things  of  which  judicial  tribunals 
may  take  notice,  and  should  take  notice,  without  proof  ? 
It  is  possible  to  indicate  with  exactness  only  a  part  of 
these  matters.  Some  things  are  thus  dealt  with  by  virtue 
of  express  statutory  law ;  some  in  a  manner  that  is  refer- 
able merely  to  precedent,  —  to  the  actual  decisions,  which 
have  selected  some  things  and  omitted  others  in  a  way 
that  is  not  always  explicable  upon  any  general  principle ; 
others  upon  a  general  maxim  of  reason  and  good  sense, 
the  application  of  which  must  rest  mainly  with  the  discre- 
tion of  the  tribunal,  and,  in  any  general  discussion,  must 
rather  be  illustrated  than  defined. 

Courts,  then,  notice  without  proof:  — 

(1)  Matters,  whether  of  law  or  fact,  which  are  required 
by  statute  to  be  so  noticed,  as  certain  certificates,  and 
attestations  of  the  records  and  judicial  proceedings  of  the 
States  and  Territories;^  and  certain  volumes  or  printed 
sheets,  purporting  to  be  authentic  records  of  law,  whether 
domestic  or  foreign;  and  the  like.^ 

(2)  They  notice  whatever  they  have  been  accustomed 
to  notice  in  this  way,  according  to  the  established  course 
of  the  common  law  and  the  practice  of  particular  courts; 
as  the  authenticity  of  the  signature,  seal,  and  certificate 
of  a  notary  public,  when  this  certificate  purports  to  be 
given  in  the  discharge  of  his  ancient  international  function 
of  protesting  foreign  bills  of  exchange.^  The  recognition 
by  courts  of  the  international  relations  of  their  own 
country,  of  the  great  seal,  of  the  names  and  official  sig- 
natures and  public  acts  of  high  public  officials,  past  and 
present,  and  the  like,  may  come  under  this  head.*  The 
administration  of  justice  is  carried  on  by  the  sovereign. 
The  sovereign,  in  the  lapse  of  time,  has  lost  something  of 

1  Rev.  St.  U.  S.  s.  90.5  ;  Pub.  St.  Mass.  c.  169,  s.  67. 

2  See  2  Tayl.  Ev.  s.  1527  for  illustrations  of  this  ;  Brady  v.  Page,  59 
Cal.  52. 

3  Anonymous,  Holt,  296,  297  ;  Pierce  v.  Indseth,  106  U.  S.  546. 
*  Wells  V.  Jackson  Co.,  47  N.  H.  235. 


300  LAW   OF   EVIDENCE. 

his  concreteness,  where  he  has  not  lost  it  all;  but  when  the 
king,  long  ago,  sat  personally  in  court,  and,  in  later  times, 
when  judicial  officers  were  in  a  true  and  lively  sense  the 
representatives  and  even  mere  deputies  of  the  king,  it  was 
an  obvious  and  easily  intelligible  thing  that  courts  should 
notice  without  evidence  whatever  the  king  himself  knew 
or  did,  in  the  exercise  of  any  of  his  official  functions, 
whether  directly  or  through  other  high  officers.  The  same 
usages  of  the  courts  have  continued,  under  the  prevalence 
of  legal  and  political  theories  very  different  indeed  from 
those  just  mentioned ;  and  it  is  not  to  be  wished  that  these 
usages  should  change.  Practical  convenience  and  good 
sense  demand  an  increase  rather  than  a  lessening  of  the 
number  of  instances  in  which  courts  shorten  trials,  by 
making  p7'ima  facie  assumptions,  not  likely,  on  the  one 
hand,  to  be  successfully  denied,  and,  on  the  other,  if  they 
be  denied,  admitting  readily  of  verification  or  disproof.-^ 

Some  of  the  usually  stated  limitations  upon  the  power 
of  taking  judicial  notice  of  facts  are  only  explicable  on 
the  ground  of  precedent,  and  are  properly  to  be  referred  to 
this  head  of  the  established  -practice  of  the  courts.  It  is 
said  sometimes  that  courts  will  notice  the  different  coun- 
ties, but  not  that  any  particular  place  is  in  a  given  county, 
or  just  where  it  is.^  Cases  of  this  class  often  decide 
something  very  different  from  the  broad  principle  for  which 
they  are  cited;  but  in  so  far  as  any  such  doctrine  as 
that  last  mentioned  is  true,  it  must  rest  merely  on  author- 
ity. The  refusing  to  notice  a  well-known  custom  of 
London,  in  Argyle  and  Hunt,^  is  to  be  regarded  in  the  same 
light. 

'  In  JVlticr's  case,  28  State  Trials,  016  (1803),  Lord  Ellonborougli,  in 
,siiinininf(  np  to  the  jury,  said  :  " 'Pliat  Napoloon  IJuonapiirtc'  was  tlie  cliief 
inaffitttrato  and  first  consul  of  France  is  admitted.  And  that  [France  and 
Kiifjland  were  at  j)cacc]  is  also  admitted  ;  and,  indeed,  they  were  capable 
of  easy  proof  if  they  had  not  been  admitted.  Their  notoriely  seems  to 
render  the  actual  proof  very  unnece.ssary." 

2  Deybol'H  case,  4  B.  &  Aid.  243  ;  Brune  v.  Th(jnipson,  2  Q.  B.  789. 
But  .sec  ;'n/"m,  310. 

3  1  Strange,  187. 


JUDICIAL  NOTICE.  301 

(3)  Courts  notice  without  proof  all,  whether  fact  or 
law,  that  is  necessarily  or  justly  to  be  imputed  to  them, 
by  way  of  general  outfit  for  the  proper  discharge  of  the 
judicial  function.  As  Lord  Mansfield  said  of  underwriters 
and  certain  usages  which  they  were  bound  to  know :  ^  "If 
they  do  not  know  them  they  must  inform  themselves." 
Among  such  things  are  the  ordinary  usages  and  practice 
of  their  courts;  the  general  principles  and  rules  of  the 
law  of  their  jurisdiction ;  ^  the  ordinary  meaning,  con- 
struction, and  use  of  the  vernacular  language;  the  ordi- 
nary rules  and  methods  of  human  thinking  and  reasoning; 
the  ordinary  data  of  human  experience,  and  judicial  expe- 
rience in  the  particular  region;  the  ordinary  habits  of 
men.^ 

(4)  And  then,  finally,  there  is  a  wide  principle,  cover- 
ing some  things  already  mentioned,  that  courts  may  and 
should  notice  without  proof,  and  assume  as  known  by 
others,    whatever,  as   the    phrase    is,    everybody  knows.* 

1  Noble  V.  Kennoway  2  Dong.  510i 

2  111  a  great  proportion  of  tlie  cases  that  come  before  the  United  States 
courts  they  may  aud  must  take  judicial  notice  of  tlie  laws  of  any  State  in 
the  Union,  as  well  as  of  the  United  States.  Hauley  ?;.  Donoghue,  116 
U.  S.  p.  6. 

<*  "  And  Holt,  Chief  Justice,  said,  that  the  way  and  manner  of  trad- 
ing is  to  be  taken  notice  of ;  "  Ford  r.  Hopkins,  1  Salk.  283.  In  Turley  v. 
Thomas,  8  C.  &  P.  103,  at  Nisi  Prius,  the  judge  took  notice  of  the  [English] 
rule  of  the  road,  to  turn  to  the  near  hand,  and  ruled  that  it  applied  to 
riding  as  well  as  driving.  Of  this  rule.  Christian  remarked  in  1793  (1  Bl. 
Com.  12th  ed.  74 u.):  "The  law  of  the  road,  namely,  that  horses  and 
carriages  should  pass  each  other  on  the  whip  hand  .  .  .  has  not  been 
enacted  by  the  legislature,  and  is  so  modern  that  perhaps  this  is  the  first 
time  it  has  been  noticed  in  a  book  of  law." 

*  In  Texas,  in  interpreting  the  statement  that  a  certain  person  "  had 
been  with  Sam  Houston  most  of  the  time  and  with  Davy  Crockett,"  a 
court  lately  said  :  "  It  is  an  historical  fact  of  which  courts  must  take 
judicial  knowledge,  that,  in  the  war  between  Texas  and  Mexico,  Sam 
Houston  held  a  liigh  military  office,  and  was  actively  engaged,  as  a  leader 
in  the  Texas  army."     Sargent  v.  Lawrence,  40  S.  W.  Pep.  107.5  (1897). 

In  Lumley  v.  Gye,  2  El.  &  Bl.  266-7,  in  a  well-known  dissenting 
opinion  relating  to  an  opera  singer,  Coleridge,  J.,  said :  "  Nor,  I  think. 


302  LAW   OF   EVIDENCE. 

The  application  of  such  a  principle  must,  as  I  have  said, 
leave  a  great  range  of  discretion  to  the  courts;  only  in  a 
large  and  general  way  can  any  one  say  in  advance  what' 
are  and  what  are  not  matters  of  common  knowledge. 
Some  such  things  as  the  following  may  be  laid  down  :  What- 
ever a  court  will  notice  without  proof  it  may  state  to  the 
jury,  or  allow  to  be  stated  to  it,  without  proof.  Just  as 
it  is  safe,  and  even  necessary,  to  assume  that  juries,  wit- 
nesses, counsel,  and  parties,  as  well  as  the  court  itself,  all 
understand  the  ordinary  meaning  of  language,  and  have 
enough  capacity,  training,  and  ■  experience  to  conduct 
ordinary  business,  and  to  understand  it  when  it  is  talked 
about,  so  and  upon  like  grounds  it  is  assumed  that  they 
all  know  certain  conspicuous  and  generally  known  facts, 
and  are  capable  of  making  certain  obvious  applications  of 
their  knowledge.  An  acquaintance  with  certain  great 
geographical  facts  will  be  assumed,  as  that  Missouri  is 
east  of  the  Rocky  Mountains,^  and  that  "such  streams  as 
the  Mississippi,  the  Ohio,  and  the  Wabash  for  some 
distance  above  its   confluence   with    the   Ohio,    are   navi- 

can  it  be  successfully  contended  that  we  may  not  take  judicial  cognizance 
of  the  nature  of  the  service  spoken  of  in  the  declaration.  Judges  are  not 
necessarily  to  be  ignorant  in  court  of  what  everybody  else,  and  they  them- 
selves out  of  court,  are  familiar  with  ;  nor  was  that  unreal  ignorance  con- 
sidered to  be  an  attribute  of  the  Bench  in  early  and  strict  times.  We 
find  in  tiie  Year  Books  the  judges  reasoning  about  the  ability  of  knights, 
esquires,  and  gentlemen  to  maintain  themselves  without  wages;  distin- 
giiisliing  between  jjrivate  chaplains  and  parochial  chaplains  from  the  na- 
ture of  their  employments ;  and  in  later  days  we  have  ventured  to  take 
judicial  cognizance  of  tlie  moral  (jualities  of  Robinson  Crusoe's  'man 
Friday'  (1  Dow.  P.  C.  672),  and  Ae.sop's  'frozen  snake'  (12  Q.  B.  624). 
We  may  certainly  tiierefore  take  upon  ourselves  to  pronounce  that  a 
singer  at  openis.  or  a  dramatic  artiste  to  the  owner  and  manager  of  Her 
Majesty's  theatre,  is  not  a  mcssnr,  fdlmior  <iiil  (ilins  serriem  witliin  either 
tlio  letter  or  the  spirit  of  tlie  Statute  of  Laborers.  And  if  we  were  to 
hold  to  the  contrary,  as  to  thf  profession  of  Carrick  and  Siddons,  we  could 
not  refuse  to  hold  tli.-  s;niic  witli  regard  to  the  sister  arts  of  Painting, 
Sculpture,  ;iiid  Ar(  liilid  mi'." 
'  Price  i'.  l'ag<',  24  .Mo.  (j.'j. 


JUDICIAL  NOTICE.  303 

gable,"  ^  but  the  point  where  they  cease  to  be  navigable  is 
on  a  different  footing.  In  Massachusetts  it  is  held  that  a 
court  may  judicially  notice  that  the  Connecticut  River, 
above  the  Holyoke  dam,  is  not  a  public  highway  for 
foreign  or  interstate  commerce.^  Certain  great  facts  in 
literature  and  in  history  will  be  noticed  without  proof; 
e.  g.,  Avhat  in  a  general  way  the  Bible  is,  or  -^sop's  Fables, 
or  who  Columbus  was;  but  as  to  particular  details  of  the 
contents  of  these  books  or  of  Columbus's  discoveries,  it 
may  well  be  otherwise.  A  knowledge  will  be  assumed  of 
the  nature  and  effects  of  familiar  articles  of  food  or  drink 
in  ordinary  u.se,  and  an  infinite  number  of  like  matters. 
Illustrations  of  this  abound  in  our  books;  some  have 
already  been  given;  let  me  add  a  few  others.  Where  a 
tobacconist  was  indicted  for  illegally  keeping  his  shop 
open  on  Sunday,  and  sought  to  bring  himself  within  a 
statute  which  permitted  ''the  retail  sale  of  drugs  and 
medicines,"  without  any  attempt  to  show  that  he  sold 
tobacco  as  a  medicine,  or  kept  his  shop  open  for  the  sale 
of  it  as  such,  this  evidence  was  excluded;  and  the  jury 
were  charged  that  "keeping  one's  shop  open  to  sell  cigars 
on  the  Lord's  Day  "  would  support  a  conviction.  In  hold- 
ing this  construction  right,  the  court  said:^  "Some  facts 

1  Neaderhouser  v.  The  State,  28  Ind.  257. 

^  Com.  V.  King,  1.50  Mass.  221  ;  compare  Harrigan  v.  Con.  Riv.  Co., 
129  Mass.  580.  So  in  Talbot  v.  Hudson,  16  Gray,  417,  424,  the  geo- 
grapliical  features  of  the  Concord  and  Sudbury  Rivers  were  taiien  to 
be  within  the  judicial  cognizance  of  the  court ;  per  Bigelow,  C.  J. 

In  The  Moutello,  11  Wall.  411,  414,  Field,  J.,  for  the  court,  remarks: 
"  We  are  supposed  to  know  judicially  the  principal  features  of  the  geog- 
rapliy  of  our  country,  and,  as  a  part  of  it,  what  streams  are  public  navi- 
gable waters  of  the  United  States.  Since  tliis  case  was  presented  we 
have  examined,  with  some  care,  such  geographies  and  histories  of  Wis- 
consin as  we  could  obtain  from  the  library  of  Congress,  to  ascertain,  if 
possible,  the  real  character  of  Fox  River,  and  to  render  the  fiction  of  the 
law,  as  to  our  supposed  knowledge  of  the  navigable  streams  in  that  State, 
a  reality  in  this  case."  The  court  found  itself  unable  to  decide  this  point; 
and  the  case  was  remanded  for  further  proceedings. 

3  Com.  V.  Marzyuski,  149  Mass.  68,  per  Knowltou,  J. 


304  LAW  OF  EVIDENCE. 

are  so  obviovis  and  familiar  that  the  law  takes  notice  of 
them.  .  .  .  The  court  has  judicial  knowledge  of  the  mean- 
ing of  common  words,  and  may  well  rule  that  guns  and 
pistols  are  not  drugs  or  medicines,  and  may  exclude  the 
opinion  of  witnesses  who  offer  to  testify  that  they  are.  .  .  . 
We  are  of  the  opinion  that  cigars  sold  by  a  tobacconist  in 
the  ordinary  way  are  not  drugs  or  medicines,  within  the 
meaning  of  those  words  as  used  in  the  statute."  In  pass- 
ing on  the  constitutionality  of  a  prohibitory  liquor  law, 
the  New  York  Court  of  Appeals  laid  it  down  as  a  basis  of 
reasoning  that  "avc  must  be  allowed  to  know  what  is 
known  by  all  persons  of  common  intelligence,  that  intoxi- 
cating liquors  are  produced  for  sale  and  consumption  as  a 
beverage;  that  such  has  been  their  primary  and  princij)al 
use  in  all  ages  and  countries.  ...  It  must  follow  that 
any  .  .  .  legislation  which  .  .  .  makes  the  keeping  or 
sale  of  them  as  a  beverage  ...  a  criminal  offence  .  .  . 
must  be  deemed  ...  to  deprive  the  owner  of  the  enjoy- 
ment of  his  property."  ^  On  a  like  question  in  the  Supreme 
Court  of  Indiana,  one  of  the  majority  of  the  court  declared : 
"  The  court  knows  as  matter  of  general  knowledge,  and  is 
capable  of  judicially  asserting  the  fact,  that  the  use  of 
beer,  etc.,  as  a  beverage  is  not  necessarily  hurtful,  any 
more  than  the  use  of  lemonade  or  ice-cream."  ■■^.  The  New 
York  Court  of  Appeals,  in  declaring  unconstitutional  an 
act  prohibiting  the  manufacture  of  cigars  and  tobacco  in 
tenement-houses,  said :  "  We  must  take  judicial  notice  of 

1  Wyiicliainor  v.  Tlic  reople,  13  N.  Y.  378,  387  (1855),  per  Comstock,  J. 

2  Boclic  V.  'I'lie  State,  6  Ind.  501,  519  (1855) ;  and  m  Klare  v.  The  State, 
43  Iiid.  483,  tlccliiiiiig  to  recognize  judicially  that  common  brewers'  beer 
i.s  intoxicating.  The  "etc."  quoted  in  the  text,  gives  great  possible 
enlargement  to  the  doctrine.  The  same  court  judicially  knows  that 
whiskey  is  intoxicating,  and  allows  a  jury  to  find  it  so  upon  their  general 
knowledge  (Crinnon  v.  The  State,  18  Ind.  450).  The  Su])reme  Court  of 
Wisconsin  (I'.iilliii,  r.  The  State,  58  Wis.  39)  takes  judicial  notice  that 
"  beer,"  wlicn  tlic  word  is  used  alone,  imports  strong  beer,  and  that  such 
hoer  is  inloxicaling;  (tliirr  in  the  New  York  Court  of  Appeals.  Blatz  v. 
Kohrbucli,  11 1;  N.  Y.  4.'')0  (1889). 


JUDICIAL  NOTICE.  305 

the  nature  and  qualities  of  tobacco.  It  has  been  in  gen- 
eral use  among  civilized  men  for  more  than  two  centuries. 
It  is  used  in  some  form  by  a  majority  of  the  men  in  this 
State,  by  the  good  and  bad,  learned  and  unlearned,  the 
rich  and  the  poor.  Its  manufacture  into  cigars  is  per- 
mitted without  any  hindrance,  except  for  revenue  pur- 
poses, in  all  civilized  lands.  It  has  never  been  said  .  .  . 
that  its  preparation  and  manufacture  into  cigars  were 
dangerous  to  the  public  health.  We  .  .  .  are  not  able  to 
learn  that  tobacco  is  even  injurious  to  the  health  of  those 
who  deal  in  it,  or  are  engaged  in  its  production  or  manu- 
facture."^ So  a  court  will  notice,  without  pleading  or 
proof,  that  a  pile  of  lumber  is  likely  to  attract  children  to 
play  about  it  ;  ^  what  is  and  is  not  likely  to  frighten  horses 
of  ordinary  gentleness ;  ^  that  photography  is  a  proper 
means  of  producing  correct  likenesses ;  *  what  are  the 
"nature,  operation,  and  ordinary  uses"  of  the  telephone;^ 
what  is  tbe  meaning,  upon  a  parcel,  of  C.  0.  D. ;  ^  that 
steamboats  (first  used  in  1807)  were  in  1824  freely  employed 
in  transporting  merchandise,  and  not  merely  passengers;' 

1  Jacob's  case,  98  N.  Y.  98,  113  (1885).  The  judges  sometimes  cover 
a  wide  range  iu  their  reasouiiigs,  and  take  a  very  great  deal  for  granted. 
See,  e.  g.,  the  opinion  of  Chancellor  Walworth  on  ale  and  beer,  in  Nevia 
V.  Ladue,  3  Penio,  437  ;  that  of  Chancellor  Bland  on  trees  and  their  mode 
of  growth,  in  Patterson  i\  M'Causland,  3  Bland,  69  ;  and  that  of  Taney, 
C.  J.,  on  negroes,  in  Bred  Scott  v.  Sandford,  19  How.  393. 

2  Spengler  i'.  Williams,  67  Miss.  1 . 

3  State  V.  Me.  C.  R.  R.  Co  ,  86  Me.  309 ;  Gilbert  v.  R'y  Co.,  51  Mich. 
488,  a  singular  decision. 

*  Udderzook  v.  Com.,  76  Pa.  St.  340;  Dyson  v.  N.  Y.  &  N.  E.  R'y  Co., 
57  Conn.  9,  "not  liitherto  passed  upon  by  this  court." 

5  Wolfe  V.  Mo.  Pac.  R'y  Co.,  97  Mo.  473. 

®  State  V.  Intoxicating  Liquors,  73  Me.  278. 

■^  Gibbons  v.  Ogden,  9  Wheat.  1,  220.  Such  questions  relating  to  new 
inventions  and  new  usages,  must  often  be  answered  one  way  at  one  time, 
and  in  a  different  way  later  on.  In  E.r  parte  Powell,  1  Ch.  Div.  501,  we 
find  the  English  Court  of  Appeal  declining  to  recognize  without  proof  the 
existence  of  a  certain  custom  in  1875,  while  in  1881,  in  Crawcour  y.  Salter, 
18  Ch.  Div  30,  the  same  court  holds  it  to  be  now  so  well  known  that  the 
courts  must  judicially  notice  it.     For  centuries  our  courts  have  noticed 

20 


306  LAW  OF  EVIDENCE, 

that  a  post-card  is  likely  to  be  read  by  others  than  the 
one  to  whom  it  is  addressed ;  ^  that  coupon  railroad  tickets 
for  a  continuous  journey  over  several  different  lines  were 
in  general  use  long  before  March  17,  1885,  the  date  of  a 
certain  patent;  '^  what  the  nature  of  the  business  of  a  mer- 
cantile agency  is;^  and  that  "habitual  drunkenness"  as  a 
ground  for  divorce,  and  being  a  "habitual  drunkard"  as  a 
ground  for  punishment,  do  not  include  habitual  or  common 
excess  in  the  use  of  morphine  or  chloroform.* 

IV.  Some  discriminations  which  must  be  attended  to  in 
applying  the  principle  of  judicial  notice  should  now  be 
mentioned. 

(1)  Sometimes  the  ultimate  fact  that  is  sought  to  be 
proved  is  noticed,  and  sometimes  it  is  the  trustworthiness 
of  a  certain  medium  of  proof,  and  not  the  thing  itself 
which  this  tends  to  j^rove;  as  when  a  notarial  seal  and 
signature  are  taken  without  proof,  or  the  certificate  of  a 
registrar  of  deeds  or  other  public  official.  That  is  to  say, 
the  question  sometimes  concerns  an  evidential  fact  and 
sometimes  an  ultimate  one ;  whichever  it  be,  it  is  governed 
by  the  same  principles.     When  the  statutes  of  the  United 

without  proof  what  the  term  "  o'clock  "  imports  ;  but  when  we  read  (Black 
Book  of  tlie  Admiralty,  I.  313,  uote),  tliat  "  hours  of  the  clock  are  men- 
tioned [in  certain  records]  in  this  reign  (Richard  II.)  for  the  first  time, 
on  March  8,  1390,"  we  are  reminded  tliat  there  was  a  time,  in  the  long 
annals  of  these  courts,  when  they  would  have  refused  to  take  judicial  no- 
tice of  this  novelty.  In  1.306  (Y.  B.  33-35  Ed.  I.  122),  a  defendant,  in 
seeking  to  remove  a  default,  .said  that  he  was  detained  by  floods  at  a  cer- 
tain i)oint,  at  noon,  the  day  before.  The  plaintiff  prayed  judgment  on  the 
ground  that  the  defenilant  was  too  late  any  way,  for  the  place  named  was 
fifteen  leagues  away,  and  it  would  have  been  impossil)le  to  get  there  in 
season. 

1  Kol)in.son  v.  Jones,  4  L.  II.  Ir.  391  (1879)  ;  and  as  to  telegrams,  Wil- 
liamson V.  Freer,  L.  11.  9  C.  P.  393  (1874).  Post-cards  containing  certain 
objocti()nal)le  m.attcr  are  declared  non-mailablo  by  a  statute  of  the  United 
States  of  Sf"i)t.  20,  1888  (2.5  St.  U.  S.  49()). 

-  Kastman  v.  Ciiic.  &  N.  W.  U'y  Co.,  39  Fed.  Hep.  .552  (C.  C.  N.  D. 
111.  1HH9). 

■'  Eaton  Co.  v.  Avery,  83  N.  Y.  ]>.  34. 

*  Yunng.s  V.  Youngs,  130  111.  230;  Com.  v.  Whitney,  11  Cash.  477. 


JUDICIAL  NOTICE.  307 

States^  make  Little  &  Brown's  edition  of  the  laws  and 
treaties  competent  evidence  of  their  contents  "in  all  the 
tribunals  and  public  offices  of  the  United  States  and  of  the 
several  States,  without  any  further  proof  or  authentication 
thereof,"  the  courts  are  required  to  take  notice  of  a  certain 
medium  of  proof  as  being  sufficient.  Some  of  these  con- 
tents —  the  public  acts  —  are  supposed  to  be  known  by  the 
judges  without  calling  for  evidence  of  them;  but  even  as 
regards  these,  their  discretion  in  selecting  and  rejecting 
modes  of  proof  is  here  restricted ;  they  cannot  reject  these 
volumes.  And  when,  in  an  interesting  case,^  it  was  held 
that  although  in  our  courts  English  statutory  law  is  matter 
of  fact  to  be  pleaded  and  proved,  yet  a  court  will  recognize 
printed  books  of  statutes  and  printed  reports  of  adjudged 
cases  shown  to  the  satisfaction  of  the  court  to  be  correct  — 
"books  of  acknowledged  or  ascertained  authority"  —  as 
competent  evidence  of  the  foreign  law,  we  perceive  the 
doctrine  that  the  court  may  take  judicial  notice  of  a  cer- 
tain means  of  proving  a  fact  when  it  cannot  take  notice 
of  the  fact  itself.^  The  doctrine  that  almanacs  may  be 
referred  to  in  order  to  ascertain  upon  what  day  of  the 
week  a  given  day  of  a  month  fell  in  any  year,  to  learn  the 
time  of  sunrise  or  sunset,  and  the  like;  and  that,  in  order 
to  prove  facts  of  general  history,  approved  books  of  history 
may  be  consulted,  may  also  be  regarded  as  illustrating  the 
taking  notice  of  the  authenticity  of  evidential  matters,  — 
of  certain  media  of  proof. ^  But  often,  in  such  cases,  the 
truth  is  that  the  court  takes  notice  of  the  fact  itself  which 
these  books  authenticate;  and  wherever  that  is  so,  a  court 
may  refer  to  whatever  source  of  information  it  pleases,  — 
the  statement  that  it  may  consult  an  almanac  or  a  general 
history  being  only  an  unnecessary  and  misleading  specifi- 

1  R.  S.  U.  S.  s.  908. 

2  The  Pawashick,  2  Lowell,  142. 

3  And  so  in  Ennis  v.  Smith,  14  How.  426-430. 

*  R.  V.  Holt,  5  T.  R.  436  ;  R.  v.  Withers,  ib.  446 ;  Dupays  v.  Shepherd. 
Holt,  296. 


308  LAW  OF   EVIDENCE. 

cation   of   a  particular    sort   of    document    that   may   be 
examined.^ 

(2)  It  is  to  be  observed  that  much  is  judicially  noticed 
without  proof,  of  which  the  court  at  a  given  moment  may 
in  fact  know  nothing.  A  statute  may  have  been  passed 
within  a  few  hours  or  days,  and  be  unknown  to  the  court 
at  the  trial;  or  a  given  fact  as  to  the  international  relation^ 
of  the  government  may  not  be  in  fact  known,  as  in  a  case 
before  cited,  where  the  judge  informed  himself  by  inquir- 
ing at  the  foreign  office ;  ^  or  the  general  meaning  of 
lauguage,  where  the  expression  was  used  in  a  document  of 
many  years  ago,  may  not  be  known  to  the  court  without 
private  study  and  reflection.^  In  such  cases  not  only  may 
a  court,  as  indeed  it  must,  avail  itself  of  every  source  of 
information  which  it  finds  helpful,  but  also,  for  the  proper 
expedition  of  business,  it  may  require  help  from  the 
parties  in  thus  instructing  itself.^ 

(3)  Taking  judicial  notice  does  not  import  that  the 
matter  is  indisputable.  It.  is  not  necessarily  anything 
more  than  a  prima  facie  recognition,  leaving  the  matter 
still  open  to  controversy.  It  is  true,  as  regards  many  of 
the  things  which  are  judicially  noticed,  that  they  cannot 
well  be  supposed  to  admit  of  question;  e.  g.,  that  Missouri 
is  east  of  the  Kocky  Mountains,  and  that  Hereford  borders 
on  Wales;  but  the  doctrine  covers  much  else.  A  seal 
which  purports  to  be  the  great  seal  of  any  State  may  in 

1  Gardner  v.  The  Collector,  6  Wall.  499  ;  State  v.  Morris,  47  Conn. 
179  ;  People  v.  Chee  Kee,  61  Cal.  404.  In  this  last  case  the  almanac  used 
was  an  ordinary  medical  advertising  almanac,  Dr.  Ayer's.  And  so  in 
Quclch's  case  (14  State  Trials,  1083)  counsel  says,  "We  shall  now 
(though  there  be  no  necessity  for  it)  prove  that,  ...  at  the  time,  .  .  . 
hor  sacred  majesty  and  the  King  of  Portugal  were  entered  into  a  strict 
alliance,"  etc.  "  T^pon  this  [goes  on  the  rei)ort]  two  London  Gazettes  .  .  . 
were  produced  and  two  paragraphs  were  read." 

2  Taylor  v.  Barclay,  2  Sim.  21.3.  Comjjarc  The  Montello,  per  Field,  J., 
supra,  30.T  n. 

8  Attv.-Gen.  v.  Duhlin,  38  Tl.  II.  4.59. 

<  School  Di.st.  V.  Ins.  Co.,  101  U.  S.  472  ;  Steph.  Dig.  Ev.,  art.  59  ;  Mark- 
by,  Notes  to  Ind.  Ev.  Act,  49. 


JUDICIAL  NOTICE.  309 

fact  not  be  genuine,  and  so  of  the  certificate  and  seal  of 
any  public  official.  A  sale  of  tobacco  and  cigars  may  be 
made  for  medical  purposes,  although  ordinarily  it  is  not. 
In  very  many  cases,  then,  taking  judicial  notice  of  a  fact 
is  merely  presuming  it,  i.  e.,  assuming  it  until  there  shall 
be  reason  to  think  otherwise.  Courts  may  judicially 
notice  much  which  they  cannot  be  required  to  notice. 
That  is  well  worth  emphasizing,  for  it  points  to  a  great 
possible  usefulness  in  this  doctrine,  in  helping  to  shorten 
and  simplify  trials;  it  is  an  instrument  of  great  capacity 
in  the  hands  of  a  competent  judge;  and  is  not  nearly  as 
much  used,  in  the  region  of  practice  and  evidence,  as  it 
should  be.  This  function  is,  indeed,  a  delicate  one;^  if  it 
is  too  loosely  or  ignorantly  exercised  it  may  annul  the 
principles  of  evidence  and  even  of  substantive  law.  But 
the  failure  to  exercise  it  tends  daily  to  smother  trials  with 
technicality,  and  monstrously  lengthens  them  out. 

(4)  Another  thing  should  be  observed,  which  often 
escapes  attention,  namely,  that  the  thing  of  which  a  court 
is  asked  to  take  cognizance  without  proof,  sometimes  is  a 
totally  different  matter  from  what  it  appears  to  be;  so 
that  the  refusal  to  notice  it  is  misconceived  and  mis- 
quoted. Thus,  in  Phillips  on  Evidence,^  one  reads  that 
"  the  courts  .  .  .  will  not  take  notice  ...  of  any  par- 
ticular city;  as,  for  instance,  that  Dublin  is  in  Ireland." 
But  the  case  cited  for  this  decides  no  such  thiiig;  the 
question  was  whether  a  declaration  in  assumpsit  on  a  bill 
drawn  at  Dublin  for  a  certain  number  of  pounds,  etc., 
without  any  averment  to  show  the  facts  that  it  was  drawn 
in  Ireland  and  for  Irish  currency,  could  be  read  as  import- 
ing those  facts,  and  it  was  held  that  it  could  not.  "  It  is 
not  possible,"  said  Abbott,  C.  J.,  "for  the  court  to  take 

1  The  warning  is  an  old  one,  Cum  multa  pntentur  notoria  qtice  rerera 
notoria  non  sunt,  prospicere  debet  judex  ne  quid  dubium  est  pro  notorio 
recipiat.     Calvinus  (a.  d.  1600)  sub  probatio. 

2  Yol.  I.  466  (10th  Eng.  ed.),  c.  x.  s.  1,  end;  citing  Kearney  v.  King, 
2  B.  &  Aid.  302. 


310  LAW   OF   EVIDENCE. 

judicial  notice  that  there  is  only  one  Dublin  in  the  worldy 
Again,  -where  a  suit  was  brought  in  Texas  on  a  promissory 
note  payable  at  New  Orleans,  and  no  averment  that  this 
New  Orleans  was  in  Louisiana,  the  defect  was  supplied  by 
other  matter  upon  the  record;  but  the  court  thought  that 
it  could  not  judicially  know  that  the  note  was  payable 
in  Louisiana.^  Everybody  in  this  country  knows,  to  be 
sure,  or  may  know  for  the  asking,  that  there  is  a  New 
Orleans  in  Louisiana;  but  few  could  say  whether  there  be 
not  another  New  Orleans  in  some  other  State,  or  in  a 
dozen  of  them.  In  like  manner,  in  an  English  case,  on  a 
motion  to  set  aside  the  service  of  a  summons,  as  not  con- 
forming to  a  statute  requiring  the  indorsement  on  it  of  the 
name  and  place  of  abode  of  the  attorney  suing  it  out,  the 
actual  indorsement  was,  "  Featherstone  buildings,  Holborn, 
in  the  County  of  Surrey ; "  and  an  objection  was  made 
that,  upon  the  face  of  it,  it  was  irregular,  as  it  was  well 
known  that  this  place  and  street  were  in  Middlesex  and 
not  in  Surrey.  But  Wightman,  J.:  "I  cannot  take 
judicial  notice  that  there  is  no  such  place  in  the  County  of 
Surrey."^  Another  case,  in  which  an  English  court  is 
generally  quoted  as  refusing  to  recognize  without  evidence 
that  the  Tower  of  London  is  in  London,  may  illustrate  the 
need  of  scrutiny  and  discrimination  before  accepting  such 
paradoxical  statements.  The  case  was  on  a  rule  for  setting 
aside  a  nonsuit  and  giving  a  new  trial;  which  was,  in 
fact,  made  absolute  on  paying  costs.  But  the  court  refused 
to  do  this,  as  of  strict  right,  or  to  say  that  the  court  below 
ought  to  have  taken  notice,  without  proof,  that  a  certain 
part  of  the  Tower  of  London  was  in  the  city  of  London, 
instead   of   being  in  Middlesex.     The  point  turned  upon 

1  Andrews  v.  Hoxie,  5  Tex.  171.  This  case  was  cited  by  the  court  in 
Kills  V.  I'ark,  8  Tex.  20.'),  to  support  the  holding  that  they  conld  not  take 
judicial  notice  tliat  "  St.  Louis,  Mo.,"  meant  St.  Louis  in  Missouri;  but 
that  was  a  very  diffrrciit  tiling,  and  indefensible.  Price  v.  Page,  24 
Mo.  6.5. 

'^  Humphreys  r.  Build,  9  Dowl.  1000.  And  so  Bayley,  J.,  in  Deybel's 
case,  4  B.  &  Aid.  j).  24G. 


JUDICIAL  NOTICE.  311 

the  fact,  that  although,  in  a  popular  sense,  much  of  London 
is  in  the  County  of  Middlesex,  yet  much  of  it,  for  judicial 
and  political  purposes,  is  not;  and  the  line  was  said  to 
pass  through  the  Tower.  ^  The  decision,  therefore,  is 
merely  that  a  court  is  not  required  to  take  notice,  without 
proof,  of  the  precise  boundary  line  of  a  county;  a  very 
different  thing  from  holding  that  they  cannot  and  should 
not  take  notice  without  proof  that  an  object  admitted  to  be 
the  famous  Tower  of  London  is  in  what  is  popularly  and 
generally  known  as  London."^  In  another  case  a  learned 
author^  seems  to  misconceive  the  scope  of  a  Maryland 
case.  "The  courts,"  he  remarks,  "have  refused,  more  or 
less  capriciously,  to  take  judicial  notice  of  .  .  .  the  mean- 
ing of  a  printer's  private  mark  to  an  advertisement,  thus, 
'  Oct.  13,  4t, '  as  indicating  the  date  and  term  of  publica- 
tion." But  on  referring  to  the  case  cited  fur  this  state- 
ment we  find  that  the  court  was  not  declining  to  notice  the 
meaning  of  this  expression,  but  to  infer  from  the  use  of  it 
that  a  certain  advertisement  actually  ivas  published  on  the 
date  named,  and  three  times  afterwards  —  where  the  ques- 
tion was  as  to  the  meaning  of  the  record,  in  determin- 
ing  whether  a  mortgage   had   been   properly  foreclosed.* 

1  Brune  v.  Thompson,  2  Q.  B.  789.  "  This,"  says  Coke,  in  the  Fourth 
Institute,  251,  "upon  view  and  examination  was  found  out  Mic.  13  Jac. 
regis  [1615],  in  the  case  of  Sir  Thomas  Overbury,  wlio  was  poysoned  in  a 
chamber  in  the  Tower  on  tlie  west  part  of  that  old  wall."  What  is  on 
the  west  of  the  wall  is  said  to  be  in  London,  and  on  the  east  in  Middlesex. 
And  so  Coke,  Third  Inst.  136.  These  passages  are  cited  by  counsel  in 
2  Q.  B.  789.  See  Loftie,  Hist.  London,  ii.  136.  "  London,"  said  Newton, 
C.  J.,  in  1443  (Y.  B.  22  H.  VI.  12,  13),  "is  an  entire  body  and  county  by 
itself,  and  does  not  reach  beyond  Temple  Bar.  And  Middlesex  is  an 
entire  county  and  cannot  be  in  the  franchise  of  London." 

2  Wharton  (Ev.  i.  s.  339,  notes)  evidently  misconceives  the  decision, 
when  he  says  that  in  this  case  "  the  court  went  to  the  absurd  extreme  of 
nonsuiting  the  plaintiff  because  he  did  not  prove  that  the  Tower  of  Lou- 
don was  in  the  city  of  London." 

3  Wade  on  Notice  (2d  ed.),  s.  1417.  Mr.  Wade  has  a  useful  collection 
of  cases,  and  I  am  indebted  to  him  for  several  references. 

*  Johnson  v.  Robertson,  31  Md.  476. 


312  LAW   OF  EVIDENCE. 

Finally,  a  case  may  be  mentioned  under  this  head,  where 
a  hotel-keeper,  now  bankrupt,  had  hired  his  furniture  from 
a  dealer.  The  furniture  was  claimed  for  the  creditors, 
under  the  English  bankrupt  law,  as  having  been  left  in 
the  credit  and  disposition  of  the  bankrupt;  but  the  dealer 
claimed  on  the  ground  that  the  custom  of  letting  furniture 
to  hotel-keepers  without  passing  the  title  to  it,  was  estab- 
lished and  generally  known.  Tlie  court,  in  considering 
whether  they  could  take  notice  of  this  without  proof, 
drew  attention  to  the  fact  that  the  real  question  was  not 
as  to  the  existence  of  the  custom,  but  whether  it  had 
existed  so  long  and  had  been  so  extensively  acted  on,  that 
ordinary  creditors  of  the  hotel-keeper,  "the  wine  mer- 
chant, the  spirit  merchant,  the  brewer,  the  ordinary  trades- 
man of  his  town,  were  likely  to  know  that  it  exists."  ^ 

1  Expurle  Powell,  1  Ch.  Div.  501. 


PKESUMPTIONS.  313 


CHAPTER   VIIL 

PRESUMPTIONS. 

When  a  learned  Italian  began  a  treatise  upon  Presump- 
tions three  hundred  years  ago,  he  opened  with  these 
words:  Materia  qiiain  aggressuri  sunnis  valde  ^ltilis  est  et 
quotidiana  in  practica ;  sed  confusa,  inextricabilis  fere." 
These  words  of  Alciatus  were  put  by  Best,  in  1844,  upon 
the  title-page  of  his  early  treatise  on  this  subject;  and 
in  the  minds  of  most  students  of  the  matter,  they  have 
always  found  a  lively  echo.  Without  entering,  now,  upon 
any  detailed  consideration  of  the  mass  of  legal  presump- 
tions, an  unprofitable  and  monstrous  task,  it  may  be  pos- 
sible to  point  out  the  nature  and  the  place  of  this  topic  in 
our  law,  and  by  this  means  to  relieve  the  subject  of  much 
of  its  obscurity.^ 

1  The  best  consideration  of  the  subject  of  presumptions  known  to  me 
is  found  in  an  article  in  6  Law  Mag.  348  (Oct.  1831).  It  is,  I  think, 
very  questionable  in  many  particulars,  but  I  give  the  main  part  of  it 
in  an  Appendix,  infra,  .539.  The  author  dismisses  from  the  subject  of 
evidence  proper  what  are  called  "  presumptions  of  fact  "  and  also  absolute 
"  presumptions  of  law ; "  but,  erroneously,  as  I  think,  he  regards  disput- 
able presumptions  of  law  not  merely  as  a  part  of  the  law  of  evidence,  biit 
as  the  most  important  part  of  it.  This  writer  makes  the  valuable  remark 
{infra,  549)  that  "  presumptions  of  law  cannot  conveniently  be  treated  to- 
gether under  a  separate  head,  but  ought  to  be  set  forth  under  the  different 
subjects  to  which  they  respectively  belong."  J.  F.  Stephen  said  something 
similar  in  1872  (Introd.  to  Ind.  Ev.  Act,  133),  and  again,  in  1876  (Introd. 
to  Dig.  of  Evid.) ;  but  he  still  retained  in  his  books  on  evidence  a 
number  of  presumptions,  and  gave,  in  Article  One  of  his  Digest,  this 
definition  of  the  term  :  " '  A  presumption  '  means  a  rule  of  law  that  courts 
and  judges  shall  draw  a  particular  inference  from  a  particular  fact  or  from 
particular  evidence,  unless  and  until  the  truth  of  such  inference  is  dis- 


314  LAW   OF   EVIDENCE. 

1.  What  is  the  relation  of  presumptions  to  what  we  call 
the  "law  of  evidence."  They  are  ordinarily  regarded  as 
belonging  peculiarly  to  that  part  of  the  law.  This  appears 
to  be  an  error;  they  belong  rather  to  a  much  larger  topic, 
already  briefly  considered,  that  of  legal  reasoning,  in  its 
application  to  particular  subjects.  This  is  intimated  in 
the  last  clause  of  the  partly  quoted  passage  from  Alciatus, 
just  referred  to,  when  he  goes  on  to  say,  "  comm^misque  est 
et  Jurisconsultoribus  et  rhetoribus  in  r/enere  judiciali."  For 
reasoning  there  is  no  law  other  than  the  laws  of  thought. 

Presumptions  are  aids  to  reasoning  and  argumentation, 
which  assume  the  truth  of  certain  matters  for  the  purpose 
of  some  given  inquiry.  They  may  be  grounded  on  general 
experience,  or  probability  of  any  kind;  or  merely  on  policy 
and  convenience.  On  whatever  basis  they  rest,  they 
operate  in  advance  of  argument  or  evidence,  or  irrespec- 
tive of  it,  by  taking  something  for  granted;  by  assuming 
its  existence.  When  the  term  is  legitimately  applied  it 
designates  a  rule  or  a  proposition  which  still  leaves  open 
to  further  inquiry  the  matter  thus  assumed.^  The  exact 
scope  and  operation  of  these  prima  facie  assumptions  are 
to  cast  upon  the  party  against  whom  they  operate,  the  duty 
of  going  forward,  in  argument  or  evidence,  on  the  particu- 
lar point  to  which  they  relate.  They  are  thus  closely 
related  to  the  subject  of  judicial  notice;  for  they  furnish 
the  basis  of  many  of  those  spontaneous  recognitions  of  par- 
ticular facts  or  conditions  which  make  up  that  doctrine. 
Presumptions  are  not  in  themselves  either  argument  or 
evidence,  although  for  the  time  being  they  accomplish  the 
result  of  both.     It  would  be  as  true,   and  no  more  so,  to 

proved  ;  "  and  lio  allowed  a  place  in  the  law  of  evidence  to  "those  [pre- 
sumptions] wliicli  relate  to  facts  merely  as  facts,  and  apart  from  the  ))ar- 
ticnlar  rights  which  they  constitute."  1  le  seems  to  mo,  here  and  elsewhere, 
to  have  left  the  snhject  still  in  confusion,  hy  not  discriminatinj^  lietwecn 
rules  of  reasoniuf,',  and  the  law  of  evidence.  The  law  has  no  mandannis  to 
the  lofTjcjil  faculty  ;  it  orders  nohody  to  draw  inferences,  —  common  as 
tliat  mode  of  expn^.ssion  is.  Sec,  r..  q.,  Austin,  .lurisj).  i.  M7  (London,  4th 
od.),  and  Bcrst,  T'^vld.  s.  .104. 

1   As  to  a'l.solule  presumptions,  sec  inji'n,  317,  .'543  u. 


PKESUMPTIONS.  315 

say  that  an  instance  of  judicial  notice  is  evidence,  as  to  say 
that  a  presun  ption  is  evidence.^  Presumption,  assump- 
tion, taking  iQ,v  granted,  are  simply  so  many  names  for  an 
act  or  proces^^  which  aids  and  shortens  inquiry  and  argu- 
ment. These  terms  relate  to  the  whole  field  of  argument, 
whenever  and  by  whomsoever  conducted ;  and  also  to  the 
whole  field  of  the  law,  in  so  far  as  it  has  been  shaped  or 
is  being  shaped  by  processes  of  reasoning.  That  is  to  say, 
the  subject  now  in  hand  is  one  of  universal  application  in 
the  law,  both  as  regards  the  subjects  to  which  it  relates 
and  the  persons  who  apply  it. 

Let  me  now  try  briefly  to  explain,  illustrate,  and  make 
good  what  is  here  said.  At  the  outset,  we  must  take 
notice  of  a  thing  which  easily  escapes  attention;  namely, 
that  much  of  the  substantive  law  is  expressed  presump- 
tively, in  the  form  of  prima  facie  rules.  This  evidential 
form  of  statement  leads  often  to  the  opinion  that  the 
substance  of  the  proposition  is  evidential;  and  then  to  the 
further  notion,  that  inasmuch  as  it  is  evidential  it  belongs 
to  the  law  of  evidence.  That  is  an  error.  In  a  reasoned 
body  of  law  like  ours,  much  of  it  comes  about  by  "intend- 
ments." In  applying  statutory  law  also,  this  takes  place, ^ 
but  far  less  conspicuously  than  in  the  common  law.  If 
we  suppose  any  fundamental  proposition  of  the  substan- 
tive law,  e.  g.,  that  when,  in  negotiating  for  a  sale  of 
specific  personal  property,  the  event  X  happens,  with  tho 
intention  of  both  parties  to  sell  the  property,  the  sale 
actually  takes  place,  we  observe  that  this  comes  to  be 
attended  by  a  crop  of  subsidiary  rules,  such  as  that  when 
Y  happens,  this  necessary  intention  of  the  parties  presum- 
ably exists.^  The  question  of  intention  is  not  closed  to 
evidence  by  this  rule,  —  the  matter  lies  wholly  open;  but, 

1  See  the  very  questionable  reasoning  and  conclusions  on  this  subject 
in  Coffin  v.  U.  S.,  156  U.  S.  432.     Compare  infra,  Appendix  B. 

2  For  example,  see  Powell  v.  Kempton  Park  Co.,  77  L.  T.  R.  2. 

3  Blackburn,  in  his  admirable  book  on  Sale,  1st  ed.,  pp.  151-154,  gives 
two  such  rules,  "  of  which  there  is  no  trace  in  the  reports  before  the  time 
of  Lord  Ellenborough  "  (a.  d.  1802-1818). 


316  LAW   OF   EVIDENCE. 

in  applying  the  law,  a  certain  prima  facie  3ffect  is  given 
to  particular  facts,  and  it  is  not  merely  given  to  them 
once,  by  one  judge,  on  a  single  occasion,  b  t  it  is  imputed 
to  them  habitually,  and  by  a  rule  which  is  followed  by  all 
judges,  and  recommended  to  juries  ;  and  even  laid  down  to 
juries  as  the  binding  rule  of  law.  Accordingly  the  sub- 
stantive law  gets  into  this  shape,  that  when,  in  a  negotia- 
tion for  a  sale  of  specific  personal  property,  X  happens, 
Avith  the  intention  on  both  sides  to  sell  the  property,  the 
sale  takes  place  then ;  and  when  Y  happens,  this  intention 
presumably  exists.  Or,  to  put  it  shorter,  "  when  X  and 
Y  happen  in  a  negotiation  for  a  sale  of  specific  personal 
property,  presumably  the  sale  takes  place."  Blackburn, 
in  stating  these  rules,  calls  them  rules  of  construction; 
that  is  to  say,  rules  of  the  substantive  law  designed  to  aid 
in  interpreting  words  and  conduct.^ 

In  such  cases,  that  which  is  evidential  merely,  —  that 
is  to  say,  the  foundation  of  a  logical  inference  as  to  the 
existence  of  one  of  those  ultimate  facts  to  which  alone, 
in  the  first  instance,  the  substantive  law  annexes  its  con- 
sequences, —  has  itself  become  the  subject  of  a  rule  of 
substantive  law,  and  comes  to  have  certain  consequences 
directly  annexed  to  it.  By  the  expedient  of  making  the 
rule  a  prima  facie  one,  the  courts  may  have  seemed  to 
tliemselves  to  abstain  from  legislation,  and  to  be  keeping 
within  the  region  of  mere  administration  of  existing  law. 
And  yet  it  is  clear  that  this  is  true  legislation.  One  may 
occasionally  trace  it  until  it  ripens  into  open  and  con- 
fessed law-giving,  as  in  Dal  ton  v.  Angus.  ^  To  say,  as 
sometimes  happens,  that  in  such  cases  there  is  "a  rule  of 

1  "A  rulo  of  coiistnu-tiou  may  ahviivs  be  rodncod  to  tlio  following 
form  :  certain  words  and  expressions  whicli  may  mean  either  X  or  Y  shall 
prima  fnr.ie  ho  taken  to  mean  X.  A  rule  of  construction  always  contains 
the  savinp  clatisc  :  '  unless  a  contrary  intention  appear  '  .  .  .  though  some 
rules  are  much  stronger  than  others  and  require  a  greater  force  of  inten- 
tion in  the  context  to  control  them."     Hawkins,  Wills,  Preface. 

2  6  App.  Cas.  740;  2  Greeiil.  Ev.  s.  5;59. 


PRESUMPTIONS.  317 

law  that  courts  and  judges  shall  draw  a  particular  infer- 
ence," ^  is  a  loose  and  misleading  expression ;  for  it  involves 
the  misconception  that  the  law  has  any  rules  at  all  for 
conducting  the  process  of  reasoning.  It  would  be  accurate 
to  say  that  the  rule  of  law  requires  a  judge  to  stop  short 
in  the  process  of  drawing  inferences,  or  not  to  enter  upon 
it  a,t  all;  to  assume  for  the  time  that  one  fact  is,  in  legal 
effect,  the  same  as  a  certain  other.  The  rule  fixes  the 
legal  effect  of  a  fact,  its  legal  equivalence  with  another. 
And  it  makes  no  difference  in  the  essential  nature  of  the 
rule  whether  this  effect  is  fixed  absolutely  ov  prhia  facie: 
it  gives  a  legal  definition.  Such  is  the  nature  of  all  rules 
to  determine  the  legal  effect  of  facts  as  contrasted  with 
their  logical  effect.  To  prescribe  and  fix  a  certain  legal 
equivalence  of  facts,  is  a  very  different  thing  from  merely 
allowing  that  meaning  to  be  given  to  them.  A  rule  of 
presumption  does  not  merely  say  that  such  and  such  a  thing 
is  a  permissible  and  usual  inference  from  other  facts,  but 
it  goes  on  to  say  that  this  significance  shall  always,  in  the 
absence  of  other  circumstances,  be  imputed  to  them,  — 
sometimes  passing  first  through  the  stage  of  saying  that  it 
ought  to  be  imputed. 

I  have  already  said  that  the  nature  of  these  rules  is 
brought  out  when  they  ripen  from  being  a  mere  ^;rma. 
facie  doctrine  into  an  absolute  and  incontrovertible  one. 
The  familiar  doctrine  about  prescription  used  to  be  put  as 
an  ordinary  rule  of  presumption;  in  twenty  years  there 
arose  a  priyna  facie  case  of  a  lost  grant  or  of  some  other 
legal  origin.  The  judges  at  first  laid  it  down  that,  if 
unanswered,  twenty  years  of  adverse  possession  justified 
the  inference;  then  that  it  "required  the  inference,"  /.  e., 
it  was  the  jury's  duty  to  do  what  they  themselves  would 
do  in  settling  the  same  question,  namely,  to  find  the  fact 
of  the  lost  grant;  and  at  last  this  conclusion  was  announced 
as  a  rule  of  the  law  of  property,  to  be  applied  absoluteh^^ 

1  Stephen,  Dig.  Ev.  art.  1,  defining  "Presumption." 

2  Dalton  V.  Angus,  6  App.  Cas.  740 ;   Wallace  v.  Fletcher,  30  N.  H. 


318  LAW   OF   EVIDENCE. 

It  is  evident,  upon  reflection,  that  the  rule  was  always  a 
rule  of  property,  — after  it  ceased  to  be  a  mere  statement  of 
a  permissible  inference,  of  a  mere  truth  of  reason,  namely, 
that  this  was  generally  a  right  and  wise  conclusion. 
When  the  judges  advised  the  jury,  and  afterwards  directed 
them  as  a  matter  of  legal  duty,  to  find  a  lost  grant  under 
the  circumstances  indicated  in  the  rule,  they  were  indeed 
dealing  with  evidential,  secondary  facts,  and  they  adopted 
the  phraseology  of  reasoning  and  drawing  inferences. 
But  in  reality  they  were  laying  down  a  rule  of  policy^ 
which  they  themselves  had  determined  to  apply,  and  which 
they  advised  and  directed  their  associates  in  administra- 
tion, the  jur}-,  —  their  co-ordinate,  and,  in  a  degree,  their 
subordinate  associates,  — also  to  apply;  a  rule  which  made 
the  twenty  years'  open  and  uncontradicted  adverse  pos- 
session a  bar.  Such  advice  and  such  direction  is  natural 
and  desirable  when  a  presiding  learned  tribunal  is  instruct- 
ing an  unlearned  one,  whose  action  it  has  the  right  to 
revise;  for  the  administration  of  the  law  should  be  kept 
consistent.  In  such  cases  the  judges  accomplish,  through 
the  phraseology  and  under  the  garb  of  "evidence,"  the 
same  results  that  they  have  long  reached,  and  are  now 
constantly  reaching,  by  the  directer  means  of  estoppel. 
The  modern  extensions  of  this  doctrine  broaden  the  law 
by  a  direct  application  of  maxims  of  justice,^  —  a  simple 

434  ;  3  Gray's  Cases  on  Property,  127  et  seq. ;  Lond.  &  N.  W.  Ry.  Co.  v. 
Com'rs,  75  L.  T.  R.  629,  632,  per  Wills,  J. :  "  If  you  are  once  in  the  laud 
of  presum]itions  and  things  that  ought  to  be  supposed  (although  gener- 
ally speaking,  nobody  does  suppcs^e  that  they  really  exist),  I  do  not  see 
why  you  should  not  presume  a  grant  before  the  statute  of  Quia  emptores 
as  well  as  after." 

1  See  Lord  lilackhurn  in  Dalton  v.  Angus,  6  App.  Cas.  808  et  seq.;  and 
Blackburn,  .T.,  in  15ryaiit  v.  Foot,  L.  R.  2  Q.  B.  101,  177.  Compare  Lind- 
ley,  L.  J.,  in  Saunders  v.  Saunders,  [1807]  V.  89,  94. 

2  It  is  such  things  to  which  Mr.  Justice  Frlc  refers  in  a  fine  passage 
wlicre  lie  speaks  of  liord  Manstield  as  "  tracing  the  hiw  upon  tlic  question 
[f)f  copyright  in  Millar  v.  'iaylor]  to  its  source  in  the  just  and  useful. 
And  Lord  Mansfiehi's  authority  in  this  matter  outweighs  that  of  Lords 
Kcnyon  and  Ellenborough,  not  only  .  .  .  but  also  because  these  succes- 


PRESUMPTIONS.  319 

method,  and  worthy  of  any  judicial  tribunal  which  rises  to 
the  level  of  its  great  office ;  and  yet  one  not  quite  in  har- 
mony with  the  general  attitude  of  the  common-law  courts 
and  their  humble  phraseology  in  disclaiming  the  office  of 
legislation.  But  inasmuch  as  every  body  of  men  who 
undertake  to  administer  the  law  must,  in  fitting  it  to  the 
ever-changing  combinations  of  fact  that  come  before  them, 
constantly  legislate,  incidentally  and  in  a  subsidiary  way, 
it  is  best  that  this  should  be  openly  done;  as  it  is  in  the 
cautious  reaching  out  of  the  principle  of  estoppel.  The 
same  thing  has  taken  place  by  presumptions,  only  it  was 
less  obvious.  By  merely  handling  "evidence,"  and  fixing 
upon  it  a  given  qunlity,  the  judges'  disavowal  of  any  right 
to  make  the  law  has  seemed  to  moult  no  feather.^ 

Let  me  trace  the  same  process  in  two  more  instances. 
(a)  It  is  a  rule  of  presumption  that,  in  the  absence  of 
evidence  to  the  contrary,  a  person  shall  be  taken  to  be 
dead,  when  he  has  been  absent  seven  years  and  not  heard 
from.  That  is  a  modern  rule.  It  is  not  at  all  modern  to 
infer  death  from  a  long  absence;  the  recent  thing  is  the 
fixing  of  this  time  of  seven  years,  and  putting  it  into  a 
rule.  The  faint  beginning  of  it,  as  a  common-law  rule,  of 
general  application  in  all  questions  of  life  and  death,  is 
found,  so  far  as  our  recorded  cases  show,  in  Doe  d.  George 
V.  Jesson,^  in  January,  1805.  Long  before  this,  in  1604, 
the  "Bigamy  Act"  of  James  I.^  had  exempted  from  the 

sors  of  Lord  Mansfield  appear  to  me  to  have  turned  away  from  that  source 
of  the  law  to  which  he  habitually  resorted  with  endless  benefit  to  his 
country."  Jefferys  v.  Boosey,  4  H.  L.  C.  p.  876.  See  James  C.  Carter, 
"  The  Provinces  of  the  Written  and  the  Unwritten  Law  "  (New  York : 
lianks  &  Brothers,  1889). 

1  E.  R.  Thayer,  Judicial  Legislation,  5  Harv.  L.  Rev.  172. 

2  6  East,  80. 

3  St.  1  Jac.  I.  c.  11.  Best,  Ev.  s.  409,  note,  seems  to  intimate  that 
this  may  have  been  an  old  thing,  referring  to  Thorne  v.  Rolff,  in  Dyer's 
brief  report,  where  something  is  said  of  seven  years.  But  the  report  in 
Old  Benloe,  86,  which  gives  the  record,  shows  that  the  time  was  several 
months  less  than  seven  years. 

Of  course  the  famous  number  seven  (the  seven  planets,  seven  wonders 


320  LAW   OF   EVIDENCE. 

scope  of  its  provisions,  and  so  from  the  guilt  and  punish- 
ment of  a  felon,  (1)  those  who  had  married  a  second  time 
when  the  first  spouse  had  been  beyond  the  seas  for  seven 
years ;  *  and  (2)  those  whose  spouse  had  been  absent  for 
seven  years,  although  not  beyond  the  seas,  —  "  the  one  of 
them  not  knowing  the  other  to  be  living  within  that  time." 
This  statute,  it  may  be  noticed,  did  not  absolutely  treat 
the  absent  party  as  dead;  for  it  did  not  validate  the  second 
marriage  in  either  case.  It  simply  exempted  a  party  from 
the  statutory  penalty.*/ Again,  in  1667,  the  statute  of  19 
Car.  II.,  c.  6,^  "for  redress  of  inconveniences  by  want  of 

of  the  world,  seven  deadly  sins,  seven  sleepers,  etc.)  was  likely  to  be  for- 
ever suggesting  itself.  And  there  were  ecclesiastical  rules  and  canons 
that  may  well  have  suggested  the  time  named  in  the  Bigamy  Act.  In 
the  "  excerptiones "  of  Ecgbert,  archbishop  of  York  (a.  d.  734-766),  we 
read  [Exc.  124]  :  "  Canon  dicit.  Si  mulier  discesserit  a  viro  suo,  despiciens 
eum,  nolens  revertere  et  reconciliari  viro,  post  quinque  vel  septem  annos 
cum  consensu  episcopi,  ipse  aliam  accipiat  uxorem.  .  .  .  '"  [Exc.  125]  : 
"  Item,  Si  cujus  uxor  in  captivitatem  ducta  fuerit,  et  ea  redimi  non  poterit, 
post  annum  septimum  alteram  accipiat ;  et  si  postea  propria,  id  est,  prior 
mulier  de  captivitate  reversa  fuerit,  accipiat  earn,  posterioremque  dimittat." 
^nd  so,  vice  versa,  if  a  husband  be  enslaved.  Wilkins,  Concilia,  i.  101, 
108-109.  See  also  Hart's  Ecc.  Rec.  (2d  ed.)  194.  Some  five  centuries 
later  than  this,  however,  it  would  seem  that  no  such  rule  governed  the 
courts  of  common  law.  At  the  Easter  Term,  in  120.'?,  in  a  dower  case, 
where  the  question  was  whether  the  proceedings  sliould  wait  until  the  son, 
a  minor,  came  of  age,  it  is  set  up  that  there  is  an  older  son,  of  age  now. 
"  Matilda  [the  widow],  on  being  questioned,  says  that  .«lie  had  an  elder 
son,  but  a  certain  Abbot,  his  uncle,  took  him  into  parts  across  tlie  sea,  and 
for  seven  years  past  she  has  not  seen  him,  and  slie  does  not  know  whether 
he  is  alive  or  not.  And  because  she  does  not  know  whether  her  eldest  son 
i.H  living  or  not,  it  is  considered  that  the  assize  do  proceed,  because  Warin 
[the  infant]  lia.s  an  elder  brother.  1  Sel.  Civ.  Pleas  (Seld.  Soc),  case  156. 
And  in  1201,  at  the  Cornish  iter,  it  was  doubted  Avhether  an  absence  for 
twenty  years,  unheard  of,  justified  the  a.ssumption  that  a  man  was  dead. 
1  Selfct  Civil  ricas  (Seld.  Soc),  case  190  ;  ib.  xix. 

'  Witlioiit  saying  aiiytliinp  about  a  knowledge  of  the  ab.sent  party's 
existence;  and  so  construed  as  making  such  knowledge  immaterial.  1 
Hale,  V.  C.  69.1. 

'^  Tlie  ordinary  citation.  In  tlio  "Statutes  of  the  Kealm,"  vol.  .'),  it  is 
given  a«  18  &  19  Car.  II.  c.  II. 


PRESUMPTIONS.  321 

proof  of  the  deceases  of  persons  beyond  the  seas  or  absent- 
ing themselves,  upon  whose  lives  estates  do  depend,"  had 
provided,  in  the  case  of  estates  and  leases  depending  upon 
the  life  of  a  person  who  should  go  beyond  the  seas,  or 
otherwise  absent  himself  within  the  kingdom  for  seven 
years,  that  where  the  lessor  or  reversioner  should  bring  an 
action  to  recover  the  estate,  the  person  thus  absenting 
himself  should  "be  accounted  as  naturally  dead,"  if  there 
should  be  no  "sufficient  and  evident  proof  of  the  life,"  and 
that  the  judge  should  "  direct  the  jury  to  give  their  verdict 
as  if  the  person  .  .  .  were  dead."  But  if  the  absent 
party  shovild  not  really  have  died,  provision  was  made  for 
a  subsequent  recovery  by  him.  The  effect  of  this  statute, 
then,  was  to  end,  in  a  specific  class  of  cases,  all  inquiring 
into  evidence,  by  a  certain  assumption,  or,  as  it  is  other- 
wise called,  presumption.  The  rule  fixes,  for  the  purpose 
of  a  particular  inquiry,  the  effect  of  specified  facts; 
absence  for  seven  years,  unheard  of,  is  to  be  accounted,  as 
regards  this  particular  inquiry,  the  same  thing  as  death; 
it  is  its  legal  equivalent. 

Now,  very  likely,  in  practice,  similar  cases  may  have 
been  brought  within  "the  equity  "  of  the  statute;  as  Chief 
Justice  Holt,  in  1692,^  is  reported  to  have  "held  that  a 
remainder-man  was  within  the  equity  of  that  law ;  "  but 
we  hear  of  no  suggestion  of  a  general  seven-year  rule,  such 
as  we  have  now,  before  1805.^  In  the  case  of  Doe  d. 
George  v.  Jesson,^  there  was  a  rule  for  a  new  trial,  in  an 
action  of  ejectment,  which  turned  on  the  question  whether 
the  plaintiff's  lessor  had  entered  within  the  time  allowed 
b}^  the  Statute  of  Limitations ;  which  again  turned  on  the 
time  of  the  death  of  the  lessor's  brother,  who  had  gone  to 
sea  and  had  not  been  heard  of  for  many  years.  The  Court 
of  King's  Bench  sustained  a  ruling  that  the  jury  must  find 

1  Holman  v.  Exton,  Carth.  246. 

2  See,  for  instance,  Rowe  v.  Hasland,  1  Wm.  Bl.  404  (1762)  ;  Dixon  v. 
Dixon,  3  Bro.  C.  C.  510  (1792)  ;  Lee  v.  Willcock,  6  Ves.  605  (1802). 

3  6  East,  80. 

21 


322  LAW   OF   EVIDENCE. 

the  time  of  death  as  well  as  they  could,   .  .  .  that  at  any- 
time beyond  the  first  seven  years  they  might  fairly  presume 
him  dead;  but  the  not  hearing  of  him  within  that  period 
was  hardly  sufificient  to  afford  that  presumption.     Observe 
the   way  in   which   Lord  EUenborough   puts  the  matter: 
"  As  to  the  period  when  the  brother  might  be  supposed  to 
have  died,  according  to  the  statute,  19  Car.  II.,  c.  6,  with 
respect  to  leases  dependent  upon  lives,  and  also  according 
to  the  statute  of  bigamy  (1  Jac.  I.,  c.  2),  the  presumption 
of  the  duration  of  life,  with  respect  to  persons  of  whom 
no  account  can  be  given,  ends  at  the  expiration  of  seven 
years   from   the   time  when  they  were  last  known  to  be 
living.     Therefore,  in  the  absence  of  all  other  evidence  to 
show  that  he  was  living  at  a  later  period,  there  was  fair 
ground  for  the  jury  to  presume  that  he  was  dead  at  the  end 
of  seven  years  from  the  time  when  he  went  to  sea  on  his 
second   voyage,   which   seems   to   be    the   last  account  of 
him."     This  was  supporting  what  the  jury  had  done,   on 
the   simple   ground   that   the   jury  were  justified,  on  the 
analogy  of  the  two  statutes,   in  finding  death  by  the  end 
of  the  seven  years ;  and,  moreover  (looking  at  Mr.  Justice 
Rooke's  ruling,  which  was  not  questioned  upon  this  point), 
that  they  would  not  be  justified  in  finding  it  earlier.     It 
was  not  laid  down  that   they  ought  to  find  death  at  the 
end  of  seven  years,  or  that  they  must;  nor  was  any  rule  of 
presumption  put  forward;  nor,  as  I  say,  was  it  on  any  such 
point  that  the  ruling  below  was  questioned  in  the  full  bench. 
In  1809,  at  Nisi  Prius,^  in  an  action  against  a  woman  on 
a  promissory  note,  she  pleaded  coverture,  and  proved  her 
marriage;    but  the  husband  had  gone  to  Jamaica   twelve 
years  ago,  and  it  was  a  question  how  to  prove  that  he  was 
now  living.     The  defendant  insisted  that  he  must  be  pre- 
sumed to  be  alive;  but  Lord  Ellenborougli  ruled  that  evi- 
dence must  he  given  of  his  being  alive  within  seven  years. 
Tliis  wns  given,  and  the  defendant  had  a  verdict.     In  the 
other  case  the  aim  was   to   prove  death;   here,   life;  and 

1   IIi.pcwcll  r.  Do  Pinna,  2  Camp.  113. 


PRESUMPTIONS.  323 

here  the  ruling  was  that  a  court  cannot  assume  life  now, 
when  all  that  it  knows  is  that  the  party  has  been  absent 
and  unheard  from  for  more  than  seven  years.  Upon  tlie 
basis  of  these  cases,  there  soon  appeared  in  the  text-books 
on  evidence,  for  the  first  time  in  1815,  a  general  proposi- 
tion that  "  where  the  issue  is  upon  the  life  or  death  .  .  . 
where  no  account  can  be  given  of  the  person,  this  presump- 
tion [namely,  that  a  living  person  '  continues  alive  until 
the  contrary  be  proved ']  ceases  at  the  end  of  seven  years 
from  the  time  when  he  was  last  known  to  be  living,  —  a 
period  which  has  been  fixed  from  analogy  to  the  statute  of 
bigamy  and  the  statute  concerning  leases  determinable 
upon  lives."  ^  In  this  form  the  matter  was  again  put  by 
Starkie,  ten  years  later,  in  the  first  edition  of  his  book; 
and  by  Greenleaf,  and  so  by  Taylor.^  But  the  judges  as 
well  as  text-writers  got  to  expressing  what  had  been  put 
as  a  cessation  of  a  presumption  of  life  in  the  form  of  an 
affirmative  presumption  of  death;  and  this  was  put  as  a 
rule  of  general  application  wherever  life  and  death  were 
in  question.  And  so  Stephen  puts  it :  ^  "A  person  shown 
not  to  have  been  heard  of  for  seven  years  by  those  (if 
any)  who  if  he  had  been  alive  would  naturally  have  heard 
of  him,  is  presumed  to  be  dead,  unless  the  circumstances  of 
the  case  are  such  as  to  account  for  his  not  being  heard  of 
without  assuming  his  death."  This  rule  is  set  down  by 
Stephen  among  the  few  presumptions  which  be  thinks 
should  find  a  place  in  the  law  of  evidence.  Stephen  pub- 
lished his  Digest  in  1876.  Here,  then,  in  seventy  years, 
Ave  find  the  rule  about  a  seven  years'  absence  (1)  com- 
ing into  existence  in  the  form  of  a  judicial  declaration 
about  what  may  or  may  not  fairly  be  inferred  by  a  jury 
in  the  exercise  of  their  logical  faculty;  the  particular 
period  being  fixed  by  reference  to  two  legislative  determi- 

1  Phil.  Ev.  i.  152  (2d  ed.). 

2  Starkie,  Ev.  (1st  ed.)  part  iv.  p.  458;  1  Gr.  Ev.  s.  41  ;    1  Tayl.  Ev. 
(9th  ed.)  s.  200. 

3  Dig.  Ev.  art.  99. 


324  LAW   OF  EVIDENCE. 

nations,  in  specific  cases  of  a  like  question;  (2)  passing 
into  the  form  of  an  affirmative  rule  of  law  requiring  that 
death  be  assumed  under  the  given  circumstances.  This  is 
a  process  of  judicial  legislation,  advancing  from'  what  is  a 
mere  recognition  of  a  legitimate  step  in  legal  reasoning  to 
a  declaration  of  the  legal  effect  of  certain  facts. 

In  Pennsylvania  it  is  possible  to  put  the  finger  on  the 
very  case  that  accomplished  this  legislative  stroke.  In 
1817  ^  the  Supreme  Court  of  that  State  had  laid  down  the 
duty  of  a  jury  to  presume  death,  without  any  positive 
proof  of  it,  when  an  unexplained  absence  for  many  years 
is  shown;  but  they  refused  to  adopt  a  seven  years'  rule. 
"I  am  not,"  said  Tilghman,  C.  J.,  "for  fixing  any  precise 
period  after  which  a  presumption  of  death  rises.  But 
here  fourteen  years  and  nine  mouths,"  etc.  But  twenty- 
two  years  later  the  same  court  adopted  the  English  rule, 
although  in  Pennsylvania  there  were  no  statutes  like  those 
in  England;  and  they  said:  "If  there  is  no  direct  decision, 
as  there  is  in  some  of  our  States,  it  is  because  there  has 
been  no  case  requiring  it.  There  is  such  a  case  now,  and 
the  principle  is  to  be  considered  as  definitely  settled."  "^ 
In  some  States  this  rule,  or  the  like,  has  been  fixed  by 
statute;  but  it  is  no  less  well  established  in  others  where 
it  rests  not  upon  a  statute,  but  a  judicial  determination. 

(h)  Again,  the  nature  of  such  rules  and  the  way  in 
which  they  spring  up,  may  be  illustrated  by  a  short  series 
of  modern  cases  in  England.  In  applications  for  relief 
against  an  alleged  interference  with  ancient  lights,  the 
equity  courts  lay  down  the  test  that  a  new  erection  must 
not  render  the  house  "substantially  less  enjoyable."  That 
is  the  legal  rule.  In  determining  whether  this  amount  of 
interference  exists  in  any  given  case,  it  was  thought  con- 
venient, in  l.SCG,"  to  lay  down  an  auxiliary,  prima  facie 
rule,  on  tlie  analogy  of  a  recent  statute  for  regulating  the 

J  Miller  i;.  IJcatcs,  3  S.  &  U.  400. 

2  Burr  /'.  Sim,  4  Wliarton,  150  (18.39). 

'  Beadel  v.  I'erry,  L.  R.  3  Ia\.  4C.'j,  per  Stuart,  V.  C. 


PRESUMPTIONS.  325 

height  of  buildings  on  streets,  so  as  to  prevent  the  darken- 
ing of  opposite  houses.  This  statute  had  required  that  no 
building  should  be  higher  than  the  width  of  the  street,  — 
so  as  to  leave  to  the  opposite  neighbors  an  angle  of  light  of 
forty-five  degrees.  Accordingly,  on  an  application  for  an 
injunction  against  continuing  a  neighboring  erection  where 
no  question  of  the  street  was  involved,  the  Vice-Chancellor 
adopted  and  applied  this  same  rule,  adding  that  he  had 
heard  from  one  of  the  common-law  judges  that  they  pro- 
posed, in  general,  to  act  on  that  principle.  Here  was  the 
starting  of  a  rule  of  practice,  —  of  administration ;  a  rule 
subsidiary  to  the  general  one  above  given,  —  a  rule  of  pre- 
sumption ;  namely,  that  in  the  absence  of  evidence  to  the 
contrary  the  complainant's  property  is  not  substantially 
less  enjoyable  when  he  is  left  an  angle  of  forty -five 
degrees  of  light.  This  rule  had  a  certain  amount  of  vogue ; 
and  it  appears  to  have  been  creeping  into  the  position  of 
an  established  jjrima  facie  rule,  and  perhaps  something 
more.  But  in  1873  ^  the  Lord  Chancellor  Selborne  denied 
it  this  character.  "With  regard  to  the  forty-five  degrees, 
there  is  no  positive  rule  of  law  upon  that  subject  .  .  .  ; 
but  undoubtedly  ...  if  the  legislature,  when  making 
general  regulations  as  to  buildings,  considered  .... 
then  the  fact  that  forty-five  degrees  of  sky  are  left  unob- 
structed may,  under  ordinary  circumstances,  be  considered 
'prima  facie  evidence  that  there  is  not  likely  to  be  material 
injury.  ...  If  forty-five  degrees  are  left,  this  is  some 
prima  facie  evidence  of  the  light  not  being  obstructed  to 
such  an  extent  as  to  call  for  the  interference  of  the  court, 
—  evidence  which  requires  to  be  rebutted  by  direct  evi- 
dence of  injury,  and  not  by  the  mere  exhibition  of  models." 
But  even  in  this  dubious  form  the  suggestion  of  any  rule 
at  all  was  afterwards  repudiated;  and  we  find  the  Court 
of  Appeal  wholly  rejecting  it  in  1880. ^     "It  is  no  rule  of 

1  City  of  London  Brewery  Co.  v.  Tennant,  L.  R.  9  Ch.  212. 

2  Ecc.  Cora.  V.  Kino,  14  Ch.  D.   213;  s.  c.  28  W.  R.  544.     See  the 
general  criticisms  of  Brett,  L.  J.,  in  this  case. 


326  LAW   OF   EVIDENCE. 

law,"  said  James,  L.  J.,  "  no  rule  of  evidence,  no  presump- 
tion of  law,  and  no  real  presumption  of  evidence  except  of 
the  very  slightest  kind."  The  Lord  Justices  Brett  and 
Cotton  also  denied  it  the  quality  of  a  rule  to  guide  either 
court  or  jury.  Here,  then,  is  an  abortive  rule  of  presump- 
tion, the  beginning  of  which,  and  the  end,  we  can  easily 
trace.  1 

The  characteristic  of  all  these  instances  is  the  same. 
Matter,  logically  evidential,  has  become  the  subject  of  a 
rule  which  directly,  although  only  ^^'tma  facie,  annexes  to 
it  legal  consequences  belonging  to  the  facts  of  which  it  is 
evidence;  and  this  rule  takes  its  place  in  the  substantive 
law  as  a  subsidiary  proposition,  alongside  of  the  main  and 
fundamental  one,  as  an  aid  in  the  application  of  it.  The 
law,  as  I  have  said,  is  always  growing  in  this  way,  through 
judicial  determinations;  for  the  application  of  the  ultimate 
rule  of  the  substantive  law  has  to  be  made  by  reasoning; 
and  this  process  is  forever  discovering  the  identity,  for 
legal  and  practical  purposes,  of  one  state  of  things  with 
some  other.  Many  facts  and  groups  of  facts  often  recvir, 
and  when  a  body  of  men  with  a  continuous  tradition  has 
carried  on  for  some  length  of  time  this  process  of  reason- 
ing upon  facts  that  often  repeat  themselves,  they  cut  short 
the  process  and  lay  down  a  rule.  To  such  facts  they  affix, 
by  a  general  declaration,  the  character  and  operation 
which  common  experience  has  assigned  to  them.  Eclat- 
ing, as  these  declarations  do,  to  specified  facts,  and  groups 
of  facts,  and  certain  aspects  and  consequences  of  them, 
they  belong  to  that  part  of  the  substantive  law  which 
deals  with  tliese  particular  tilings;  and  as  has  been  truly 

1  See  Mr.  Justice  Holmes's?  interesting  comments  upon  the  earlier  cases 
in  tills  series,  Common  Law,  128.  Thoy  had  attracted  my  attention  quite 
iiulcj)Oiidnntly,  and  I  now  remark  for  tlio  first  time  (since  these  sugges- 
tions were  put  in  j)riMt)  tliat  lie  iiad  cited  them  in  a  similar  line  of  argu- 
ment. Perliaps  tliis  is  only  an  illustration  of  that  suggestion  and  stim- 
ulus for  wliich  so  many  ])('rsons  are  iiuloljteil  to  tliis  excellent  book, 
altiiough  they  uiuy  have  forgotteu  it. 


PRESUMPTIONS.  327 

remarked/  they  can  be  understood  only  in  connection  with 
these  branches  of  the  hiw.  They  do  not  belong  to  the  law 
of  evidence.  When  it  is  said  that  if  persons  contract  for 
the  sale  of  a  specific  chattel,  it  is  presumed  that  the  title 
passes;  and  that  when  a  man  voluntarily  kills  another, 
without  any  more  known  or  stated,  it  is  presumed  to  be 
murder;  and  that  when  a  written  communication  to 
another  is  put  in  the  mail,  —  properly  addressed,  and 
postage  prepaid,  —  it  is  presumed  that  the  other  receives 
it;  and  that  when  one  has  been  absent  seven  years  and  no 
knowledge  of  him  had  by  those  who  would  naturally 
know,  death  is  presumed;  in  these  cases,  rightly  con- 
sidered, we  have  particular  precepts  in  the  substantive  law 
of  so  many  different  subjects,  — of  property,  of  homicide, 
of  notice,  and  of  persons. 

In  this  way,  through  rules  of  presumption,  vast  sections 
of  our  law  have  accumulated.  It  is  thus,  especially,  that 
Lord  Mansfield  and  others  conspired  with  the  merchants, 
and  transferred  their  usages  into  the  law.'^  The  essential 
nature  of  this  process,  as  I  have  said,  is  not  at  all  affected 
by  the  fact  that  these  judicial  conclusions  are  only  pre- 
sumptive, and  are  left  open  to  controversy.  That  is  not 
an  unusual  form  of  legislation,  even  when  men  profess 
to  be  legislating. 

Let  me  show  this  by  a  few  instances  of  admitted  legis- 
lation running  through  a  dozen  centuries,  —  at  times 
attaching  legal  consequences  to  evidential  facts  absolutely, 
and  at  times  operating  contingently,  and  leaving  these 
consequences  open  to  counter  proof.  (1)  In  an  often- 
quoted  passage  from  the  laws  of  Ine,  King  of  Wessex  (a.  d. 
688-725),^  it  is  provided  that  "if  a  far-coming  man  or  a 
stranger  journey  through  a  wood  out  of  the  highway,  and 
neither   shout  nor  blow  his  horn,  he  is  to  be  held  for  a 

1  Supra,  313  n. 

2  Campbell's   Lives  of  the  Chief  Justices,  iii.  274-277  (London   ed 
1874). 

3  Thorpe,  Ancient  Laws  and  Institutes  of  England,  i.  115,  c.  20. 


328  LAW   OF  EVIDENCE. 

thief,  either  to  be  slain  or  redeemed."^  (2)  In  the  laws 
of  Cnut  (a.  d.  1017-1035)^  we  read  that  if  a  man  brings 
home  a  stolen  thing,  and  it  is  put  into  the  wife's  chest,  of 
which  she  has  the  key,  "then  she  is  guilty."  And  (3)  the 
laws  of  Ine  ^  provide  that,  "  if  stolen  property  be  attached 
with  a  chapman,  and  he  have  not  brought  it  before  good 
witnesses,  let  him  prove  .  .  .  that  he  was  neither  privy 
(to  the  theft)  nor  thief;  or  pay  as  wite  (fine)  xxxvi  shill- 
ings." To  be  found  thus  in  the  possession  of  stolen  goods 
was  a  serious  thing;  if  they  were  recently  stolen,  then 
was  one  "taken  with  the  mainour,"  —  a  state  of  things 
that  formerly  might  involve  immediate  punishment,  with- 
out a  trial;  and,  later,  a  trial  without  a  formal  accusa- 
tion; *  and,  later  still,  a  presumption  of  guilt  which,  in  the 
absence  of  contrary  evidence,  justified  a  verdict,  and  at 
the  present  time  is  vanishing  away  into  the  mere  judicial 
recognition  of  a  permissible  inference,  —  as  it  is  stated  in 
Stephen's  "Digest  of  Criminal  Law:"  "The  inference 
that  an  accused  person  has  stolen  property  or  has  received 
it,  knowing  it  to  be  stolen,  may  be  drawn  from  the  fact 
that  it  is  found  in  his  possession  after  being  stolen,  and 
that  he  gives  no  satisfactory  account  of  the  way  in  which 
it  came  into  his  possession."  ^     It  is  to  be  remembered,  of 

1  It  is  interesting,  in  view  of  Stephen's  definition  of  a  presumption,  to 
find  him  (Hist.  Com.  Law,  i.  61)  calling  this  "  a  presumption  of  law." 

-  Tliorpe,  i.  419. 

8  Tliorpe,  i.  119. 

*  Stauiidford,  PI.  Cr.  1791);  supra,  71. 

6  Art.  .308.  In  a  note  the  learned  autlior  adds:  "As  to  the  rule  as  to 
recent  possession  of  stolen  goods,  many  cases  have  been  decided  on  the 
suliject  .  .  .  ;  but  they  seem  to  me  to  come  to  nothing  but  this,  that  every 
case  depends  on  its  own  circumstances,"  etc.  I'robably  the  reason  of  the 
existence  and  persistence  of  the  "  presumption  "  to  which  Stephen  here 
alludes  is  found  in  what  I  have  intimated  in  the  text,  namely,  the  long 
historical  root  that  the  thing  has.  It  is  found  probably  in  all  systems  of 
law.  Sec  the  opiniun  df  Doe,  J.,  in  State  r.  Hodge,  ."JO  N.  H.  510.  For 
another  instance  of  iliis  ladiiig  away  of  substantive  law,  througli  variou.? 
plages,  into  mere  cvidi'Mce,  see  tlie  doctrines  as  to  the  crying  of  the  child, 
in  tenancy  by  the  curtesy.    Bractou,  fol.  438 ;  Co.  Lit.  1.  1,  c.  4,  s.  35  ;  and 


PRESUMPTIONS.  329 

course,  that  the  old  modes  of  trial  —  the  ordeal,  the  oath, 
Avager  of  law,  battle  —  differed  radically  from  ours.  In  a 
criminal  case,  when  a  man  was  charged  with  an  offence, 
he  might  be  punished  unless  he  cleared  himself.  He  was 
offered  a  certain  test,  the  oath  or  the  ordeal,  and  if  he 
came  out  of  it  well  he  was  cleared;  if  not,  he  was  pun- 
ished. With  us,  if  a  man  be  arraigned,  he  must  be  proved 
guilty.  If  we  say  that  now,  in  trying  a  man  regularly 
charged  with  crime,  he  is  presumed  innocent,  we  should 
correctly  intimate  the  old  system  by  saying  that  he  was 
presumed  guilty.  And  so  (4)  The  Assize  of  Clarendon 
(1166)  required  that  a  person  charged  under  the  oath  of 
twelve  men  of  the  hundred  and  four  men  from  each  of 
certain  neighboring  townships  as  an  accused  or  notorious 
robber,  or  the  like,  should  be  taken  and  put  to  the  ordeal 
of  water. ^  (5)  By  Stat.  25  Jac.  I.,  c.  27,^  it  is  enacted 
that  "Whereas  .  .  .  women  .  .  .  delivered  of  bastard 
children  .  .  .  secretly  bury  or  conceal  the  death  of  their 
children  and  ...  if  the  child  be  found  dead  .  .  .  allege 
that  the  said  child  was  born  dead;  whereas  it  falleth  out 
sometimes  (although  hardly  it  is  to  be  proved)  that  the 
said  child  .  .  .  were  murdered  by  the  said  women  .  .  . 
be  it  enacted  .  .  .  that  if  any  woman  ...  be  delivered 
of  any  issue  of  her  body  ...  a  bastard,  and  .  .  .  endeavor 
privately  ...  so  to  conceal  the  death  thereof,  as  that  it 

compare  Plac.  Abb.  267,  col.  2  (Ilil.  5  Ed.  I.  a.  d.  1276-7),  with  Paine's 
case,  8  Co.  34,  35  ;  2  Blackst.  Com.  127.     See  infra,  3.33. 

1  Stubbs  (Select  Charters)  misconceives  the  significance  of  this  when 
be  says :  "  The  ordeal  in  these  circnmstances  being  a  resource  following 
the  verdict  of  a  jury  acquainted  with  the  fact  could  only  be  applied  to 
those  who  were  to  all  intents  and  purposes  proved  to  be  guilty."  No,  the 
ordeal  was  strictly  a  mode  of  trial.  What  may  clearly  bring  this  home  to 
one  of  the  present  day  is  the  well-known  fact  that  it  gave  place,  not  long 
after  the  Assize  of  Clarendon,  to  the  petit  jury,  when  Henry  III.  bowed 
to  the  decree  of  the  fourth  Lateran  Council  (121.5),  abolishing  the  ordeal. 
It  was  at  this  point  that  our  cumbrous,  inherited  system  of  two  juries  in 
criminal  cases  had  its  origin.     Supra,  37. 

-  A.  D.  1623  ;  modelled,  apparently,  on  an  edict  of  Henry  II.  of  France: 
in  1556,  Recueil  des  Anciennes  Lois  Frangaises,  xiii.  472-3. 


330  LAW   OF   EVIDENCE. 

may  not  come  to  light  whether  it  were  born  alive  or  not, 
but  be  concealed  .  .  .  the  said  mother  .  .  .  shall  suffer 
death  as  in  case  of  murder,  except  such  mother  can  make 
proof  by  one  witness  at  the  least  that  the  child  .  .  .  was 
born  dead."  (6)  The  Puritans  of  Plymouth,  in  1671,^ 
"Ordered,  that  the  accusation,  defamation,  or  testimony 
of  any  Indian  or  other  probable  circumstance,  shall  be 
accounted  sufficient  conviction  of  any  English  person  or 
persons  suspected  to  sell,  trade,  or  procure  any  wine, 
cider,  or  liquors  as  abovesaid,  to  any  Indian  cr  Indians, 
unless  such  English  shall  upon  their  oath  clear  themselves 
from  any  such  act  of  direct  or  indirect  selling,  trucking, 
or  lending  of  wine,  cider,  or  liquors  to  any  such  Indian 
or  Indians,  and  the  same  counted  to  be  taken  for  convic- 
tion of  any  that  trade  any  arms  or  amujunition  to  the 
Indians."  A  difficulty  in  such  cases  was,  that  while  the 
matter  was  very  pressing,  yet,  according  to  the  ideas  of 
that  period,  they  could  not  swear  an  unconverted  Indian; 
they  seem  to  have  reckoned  the.  Indians'  god  to  be  the 
devil. ^  And  the  only  way  to  handle  such  cases  as  they 
mentioned  in  this  law  —  cases  of  very  imperative  urgency 
—  was  to  put  the  accused  to  his  oath.  A  similar  require- 
ment of  "trial  by  oath"  was  formerly  made  in  Massachu- 
setts, in  cases  of  visury.  "It  seems  proper  to  remark," 
said  Chief  Justice  Shaw,  "that  trial  by  jury  has  been 
substituted  for  the  old  trial  by  oath  under  St.  1783,  c. 
r>,">."^  (7)  And,  finally,  there  is  a  common  enough  sort  of 
law  nowadays  that  runs,  e.g.,  in  this  form:  whenever  an 
"injury  is  done  to  a  building  or  other  ])roperty  by  fire 
communicated  by  a  locomotive  engine  of  any  railroad 
corporation,  the  said  corporation  shall  be  responsible  in 
damages  for  such  injury,  unless  they  shall  show  that  they 
have  used  all  due  caution  and  diligence,  and  employed 
suitable  expedients  to  prevent  such  injury."^ 

'   I'lyiiioutli  Colony  Laws,  200,  7. 

-  See  A  (Jlidpter  of  fjciial  //istorij  in  ^fassnclll(sr'lf.s, '.)  Ilarv.  L.  Rev.  1,  5. 

3  Littlo  V.  Rogprs,  1  Met   lOS. 

*  Cieu.  St.  Vcrinont,  c.  28,  s.  78,  cited  in  01  U.  S.  p.  456. 


PRESUMPTIONS.  331 

These  are  instances  of  confessed  legislation.  How  do 
they  differ  from  the  rules  of  presumption  established  by 
the  judges  ?  Neither  the  one  class  nor  the  other  belongs 
to  the  law  of  evidence.  Both  lay  down  rules,  whether 
absolute  or  presumptive,  in  the  nature  of  substantive  law, 
relating  to  the  various  subjects  dealt  with. 

III.  Perhaps  it  may  be  suggested,  as  regards  judicial 
rules  of  presumption,  that,  when  tested  by  the  rules  relat- 
ing to  special  verdicts,  they  appear  after  all  to  be  truly 
rules  of  evidence.  It  was,  indeed,  long  ago  held  that 
"  request  and  refusal  to  deliver  [in  trover]  is  good  evidence 
to  prove  conversion;  but  if  it  be  found  specially,  it  shall 
not  be  adjudged  conversion."^  And  yet,  the  judges  said, 
upon  demand  and  refusal  "it  will  be  presumed  that  he  had 
converted  it  to  his  own  use  and  therefore  stahitur  presump- 
tlonl  donee  pr oh etur  in  contrarlum."  -  Coke,  on  the  same 
occasion,  declared  that  where  a  deed  of  feoffment  forty 
years  old  is  given  in  evidence  at  the  assizes,  and  it  appears 
that  possession  has  always  gone  with  it,  although  livery 
cannot  be  proved,  he  should  direct  the  jury  to  find  it,  "for 
it  will  be  intended ;  yet  if  the  jury  should  find  these  facts 
specially,  we  cannot  adjudge  it  a  good  feoffment,  for  want 
of  livery."  ^  And  so,  in  a  leading  modern  case,  as  regards 
the  doctrine  of  prescription  and  a  last  grant,  it  was  said 
by  a  distinguished  judge  that  "none  of  them  [certain 
judges]  meant  to  say  that  a  special  verdict  would  have 
been  good  which  did  not  in  terms  find  the  existence  of  a 

1  Agars  V.  Lisle,  Hutton,  10.  And  see  Ames's  Cases  on  Torts  (1st  ed.), 
391  et  seq. 

2  Coke,  C.  .J.,  in  Isaack  r.  Clarke,  1  Eolle,  at  p.  131  (1615):  and  so  lie 
had  said  in  Chancellor  of  Oxford's  case,  10  Co.  53  b,  56  b  (1613).  In  the 
early  cases  of  Easou  v.  Xewman,  Cro.  El.  495 ;  s.  c.  Moore,  460  (1595),  it 
was  held  the  other  way.  In  the  great  case  of  Isaack  v.  Clarke,  the  court 
was  equally  divided  on  it;  and  in  Baldwin  v.  Cole,  6  Mod.  212  (1704), 
Holt,  €;.  ,1.,  said  :  "The  very  denial  of  goods  to  him  that  hath  a  right  to 
demand  them  is  an  actual  conversion,  and  not  only  evidence  of  it,  as  has 
been  holden." 

3  Isaack  v.  Clarke,  1  Rolle,  p.  132. 


332  LAW  OF  EVIDENCE. 

grant."  And  yet  there  is  no  doubt  that  all  would  agree 
that  a  lost  grant  was  presumed  in  the  sort  of  case  then 
under  consideration,  by  a  peculiarly  strong  rule.-^ 

In  reality,  however,  the  rules  for  the  construction  of 
special  verdicts  afford  no  test  for  determining  the  nature 
of  rules  of  presumption.  From  the  nature  of  verdicts,  the 
jury  must  find  the  ultimate  facts  and  not  merely  the  evi- 
dence of  them;  they  must  do  their  own  duty  of  drawing 
conclusions  of  fact  from  the  evidence  and  not  leave  it  to 
the  court  to  do  it.  But  the  rules  for  the  construction  of 
their  verdict,  for  determining  what  they  had  and  had  not 
found,  went  on  the  need  of  indulgence  to  juries,  and  on  the 
danger  of  subjecting  them  to  an  attaint  by  construction. 
These  rules  were  rigid  and  strict  in  favor  of  the  jury. 
Pleadings  were  strictly  construed  against  the  pleader;  but 
special  verdicts,  being  "the  words  of  laymen,"  were  more 
considerately  dealt  with.  "'It  is  a  dangerous  thing,"  said 
Chief  Justice  Hobart,  "to  construe  a  verdict  larger  or 
otherwise  than  upon  a  sure  ground,  for  it  subjects  them  to 
an  attaint."  ^  It  is  not  fatal  that  they  be  argumentative, 
if  the}''  find  the  case  in  fact  clear  and  without  equivoca- 
tions to  common  intent.^  The  matter  is  well  summed  up 
in  Fulwood's  case :  *  "It  was  said  that  although  verdicts, 
being  the  words  of  laymen,  shall  be  taken  according  to 
their  meaning,  and  there  need  not  so  precise  form  in  them 
as  in  pleading,  yet  tlie  substance  of  the  matter  ought  to 
appear  either  by  express  words,  or  by  words  equivalent 
or  tantamount,  so  that  there  ought  to  be  convenient 
certainty,  which  if  it  be  false,  the  party,  for  such  falsity, 
may  have  his  attaint."  It  is,  indeed,  true,  as  Doderidge, 
J.,  said  in  his  opinion  in  Isaack  v.  Clarke,  that  there  is  no 
sense  in  the  jiulges  telling  a  jury  that  they  ought,  on  their 
consciences,  to  find  a  demand  and  refusal  to  be  a  conver- 

1  Brett,  L.  J.,  in  Angus  v.  Daltoii,  4  Q.  B.  j).  421  ;  Hill  v.  Corcll, 
1  N.  Y.  .'522. 

^   Diiiifomho  7».  Win<,'fi<-]cl,  Iloh.  254,  20.'!  (lf)2;5). 

"  Kowo  V.  limit iii;,'t()ii,  \':ui;;li:iii,  GO,  75.       <  4  Co.  G4  b,  G5  h  (1590-1). 


PRESUMPTIONS.  333 

sion,  and  yet  themselves,  on  their  consciences,  adjudging 
otherwise.^  But  when  the  judges  lay  down  to  a  jury  the 
accepted  doctrine  about  demand  and  refusal  in  trover,  they 
are  assuming  an  absence  of  other  evidence.  If  the  jury, 
in  their  special  verdict,  find  demand  and  refusal,  and 
negative  other  facts  to  the  contrary,  their  verdict  may 
well  be  held  to  amount  to  a  finding  of  conversion.  But  if 
they  do  not,  then  sound  principles  would  forbid  that  con- 
clusion. "We  must  read  all  facts,"  it  has  been  said,  in 
regard  to  a  similar  question,  "whether  in  a  pleading  or  a 
special  verdict,  or  agreed  statement  or  finding  of  facts,  in 
the  light  of  rules  of  law.  Presumptions  of  law  are  rules 
of  law,  whether  disputable  or  the  contrary.  If  the  dis- 
putable presumption  is  not  contradicted  or  removed  by 
evidence,  it  is  a  rule  of  law  to  be  applied  as  inflexibly  as 
a  presumption  that  is  indisputable.  ...  In  other  words, 
a  presumption  of  law  that  is  disputable,  when  not  changed 
by  evidence,  becomes  to  the  court  a  rule  indisputable  for 
the  case,  and  the  court  is  bound  to  apply  it."  ^  And  so  in 
Paine's  case,^  in  a  question  involving  the  husband's  right 
as  tenant  by  the  curtesy,  a  special  verdict  found  that  "  the 
eldest  daughter  .  .  .  had  issue  which  was  heard  cry  and 
died,"  —  avoit  isstte  oye  crye,  etc.  This  was  treated  as  a 
sufficient  statement  that  the  issue  was  born  alive;  and  yet 
Coke's  report  (and  so  Co.  Lit.  296)  tells  us  that  the  thing 
in  question  is  that  the  child  is  born  alive,  and  "  the  crying 
of  the  child  is  but  a  proof  that  it  is  alive."  ^ 

1  1  RoUe,  p.  131.  N'est  reson  que  nous  dirromus  al  jurors  que  ils 
sur  lour  consciences  doint  trover  ceo  destre  un  conversiou  et  tamen  nous 
adjudgeromus  auterment  sur  nostre  consciences  demesne. 

2  Kidder  v.  Stevens,  60  Cal.  414,  449,  per  Thornton,  J.  And  so  John- 
son and  Trumper's  case  (1637),  21  Vin.  Abr.  Trial  (A.  g),  1,  and  ihid., 
various  cases  in  text  and  margin,  under  the  title  "  Special  Verdict.  What 
shall  be  a  good  verdict  by  intendment." 

3  8  Co.  34  (1587) ;  s.  c.  Anderson,  184. 

4  8  Co.  .34  (1587);  s.  c.  Anderson,  184.  Compare  the  custom  as  to 
tithes  of  milk  in  Hill  v.  Yaux,  2  Salk.  655,  —  that  the  parson  should  have 
all  the  milk,  "  till  a  young  lamb  yeaned  should  be  heard  to  bleat." 

In  a  modern  case  (Murphy  v.  Bennett,  68  Cal.  528,  531)  it  is  said, 


334  LAW  OF  EVIDENCE. 

Of  course  it  must  be  remembered  always  that  many 
widely  different  things  are  called  "presumptions."  As 
regards  all  that  class  of  things,  thus  named,  which  are 
merely  judicial  recognitions  of  what  is  probable,  or  per- 
missible in  reasoning,  or  of  what  is  sufhcient  to  support 
a  verdict,^  these  have  no  quality  of  substantive  law. 
Furthermore  judicial  rules  of  presumption,  while  in  process 
of  gradually  growing  up  and  hardening,  may  have  differ- 
ent degrees  of  force  and  acceptance  at  different  times ;  and 
it  may  well  be  that  as  matter  of  sound  administration  the 
judges  will  not  at  all  times  press  their  rules  and  practices 
equally  far,  or  as  far  as  they  legally  might.  Special 
verdicts  are  to  be  read  with  reference  to  the  record,  and  to 
all  appropriate  considerations  of  sense,  reason,  and  law. 
It  is  not  necessary  to  assert,  nor  is  it  probable,  that  courts 
have  always  observed  the  true  distinctions,  and  have 
always  abstained  from  pressing  caution  beyond  its  due 
bounds,  and  overdoing  technicalities.  But,  allowing  for 
all  this,  it  may  probably  be  laid  down  as  sound  in  prin- 
ciple and  not  contradicted  by  the  cases,  that  wherever  a 
jury  finds  facts  which,  according  to  the  rule  adopted  by  the 
judges  to  govern  their  own  conduct  and  to  be  laid  down 
to  a  jury,  are  stamped  with  a  prima  facie  quality,  the 
court  may  properly  read  a  special  verdict  wliich  conforms 
in  its  findings  to  all  the  suppositions  of  the  rule,  as  a 
finding  of  ultimate  facts.  ^ 

"This  court  may,  as  an  appellate  tribunal,  infer  one  fact  from  another  in 
a  special  verdict  as  a  finding  of  facts,  where  the  result  is  determined  by 
a  fixed  and  certain  rule  of  law."  Compare  Plummer's  case,  Kelyng,  109 
(old  ed.) ;  Onehy's  case,  2  Lord  "Raym.  1485  ;  The  Earl  of  Shrewsbury's 
case,  9  Co.  4C  b,  .'51  b  ;  Duncombe  c.  Wingfield,  Hob.  2.54,  2G2 ;  Lyn  v. 
Wyii,  Bridgman,  122,  151;  K,.  v.  Ilnggins,  2  Strange,  882  (1730):  "It 
woulil  be  tlui  most  dangerous  thing  in  the  worhl  if  we  should  once  give  in 
to  the  di)ctrino  of  inferring  facts  from  evidence;  whicli  is  the  ])roper 
business  of  a  jury  and  not  of  tlio  court."  K.-iymond,  C.  J.,  in  discussing 
a  special  verdict.  I''al)i:iii  i\  Wistoii,  Savile,  121,  li.T  (15'.)0),  ficr  Wind- 
liam,  J. 

'  Sec  comments  on  I  )ric  d.  (ieorgn  r.  Josson,  sn/)!-/!,  .'521. 

2  See  Lord  Blackburn's  intimations  as  to  a  needless  tecluiicality  in 


PRESUMPTIONS.  335 

IV.  I  have  been  speaking  of  rules  relating  to  specific 
facts  or  groups  of  facts.  But  sometimes  the  suppositions 
of  fact  or  the  situation  dealt  with  are  not  referable  to  any 
one  branch  of  the  law,  but  spread  through  several  or 
through  all  of  them.  Then  you  have  a  general  principle  or 
maxim  of  legal  reasoning.  There  are  many  of  these,  which 
pass  current  under  the  name  of  presumptions,  —  maxims, 
ground  rules,  constantly  to  be  remembered  and  applied  in 
legal  discussion;  such  as  those,  familiar  precepts  that 
omnia  proBsumuntur  rite  esse  acta,  prohatis  extremis  pr'ce- 
sumuntur  media,  and  the  like.  Of  this  nature  also  is  the 
assumption  of  the  existence  of  the  usual  qualities  of  human 
beings,  such  as  sanity,  and  their  regular  and  proper  con- 
duct, their  honesty  and  conformity  to  duty.^  Often  these 
maxims  and  ground  principles  get  expressed  in  this  form 
of  a  presumption  perversely  and  inaccurately,  as  when  the 
rule  that  ignorance  of  the  law  excuses  no  one,  is  put  in 
the  form  that  every  one  is  presumed  to  know  the  law ;  ^ 
and  when  the  doctrine  that  every  one  is  chargeable  with 
the  natural  consequences  of  his  conduct,  is  expressed  in 
the  form  that  every  one  is  presumed  to  intend  these 
consequences;^  and  when  the  rule  that  he  who  holds  the 
affirmative  must  make  out  his  case,  is  ^ put  in  the  form  of 
prcBsumitur  2)^'o  negante.  The  form  of  these  statements  is 
often  a  mere  matter  of  convenience  or  habit;  it  means 
little.  In  whatever  form  they  are  made  or  ought  to  be 
made,  their  character  is  the  same,  that  of  general  maxims 
in  legal  reasoning,  having  no  peculiar  relation  to  the  law 
of  evidence. 

dealing  with  special  verdicts,  iu  Dublin  Ry.  Co.  v.  Slattery,  3  App.  Cas. 
pp.  1204-5 ;  supra,  243  n. 

1  De  quolibet  homine  prasumitur  quod  sit  bonus  homo,  donee  prohetur  in 
contrarium.     Bracton,  fol.  193. 

2  "  There  is  uo  presumption  in  this  country  that  everybody  knows  the 
law ;  it  would  be  contrary  to  common  sense  and  reason  if  it  were  so." 
Maule,  J.,  in  Martindale  v.  Falkner,  2  C.  B.  719.  See  Lord  Esher,  in 
Blackburn  v.  Vigors,  17  Q.  B.  D.  553,  536-562. 

3  2  Steph.  Hist.  Cr.  Law,  HI. 


336  LAW   OF   EVIDENCE. 

V.  If,  now,  it  be  asked,  What  particular  effect  have 
rules  of  presumption  in  applying  the  law  of  evidence  ? 
the  answer  seems  to  be  that  they  have  the  same  effect  (and 
no  other),  which  they  have  in  all  the  other  regions  of 
legal  reasoning.  Their  effect  results  necessarily  from 
their  characteristic  quality,  —  the  quality,  namely,  which 
imputes  to  certain  facts  or  groups  of  fact  a  prima  facie 
significance  or  operation.  In  the  conduct,  then,  of  an 
argument,  or  of  evidence,  they  throw  upon  him  against 
whom  they  operate  the  duty  of  meeting  this  imputation. 
Should  nothing  further  be  adduced,  they  may  settle  the 
question  in  a  certain  way;  and  so  he  who  would  not  have 
it  settled  thus,  must  show  cause.  This  appears  to  be  the 
whole  effect  of  a  presumption,  and  so  of  a  rule  of  pre- 
sumption. There  are,  indeed,  various  rules  of  presump- 
tion which  appear  to  do  more  than  this,  —  to  fix  the 
amount  of  proof  to  be  adduced,  as  well  as  the  duty  of 
adducing  it.  But  in  these  cases  also,  the  presumption, 
merely  as  such,  goes  no  further  than  to  call  for  proof  of 
that  which  it  negatives,  i.  e.,  for  something  Avhich  renders 
it  probable.  It  does  not  specify  how  much;  whether 
proof  beyond  a  reasonable  doubt  or  by  a  preponderance  of 
all  the  evidence,  or  by  any  other  measure  of  proof.  From 
the  nature  of  the  case,  in  negativing  a  given  supposition 
and  calling  for  argument  or  evidence  in  support  of  it, 
there  is  meant  such  an  amount  of  evidence  or  reason  as 
may  render  the  view  contended  for  rationally  probable. 
But  beyond  that,  a  presum])tion  seems  to  say  nothing. 
When,  therefore,  we  read  that  the  contrary  of  any  par- 
ticular presumption  must  be  proved  beyond  a  reasonable 
doubt,  as  is  sometimes  said,  e.  ff.,  of  the  "presumption  of 
innocence"^  and  the  presumption  of  legitimacy,  it  is  to  be 
recognized  that  we  have  something  superadded  to  the  rule 
of  presura[)tion,  namely,  another  rule  as  to  the  amount  of 

1  Stcph.  Dig.  Ev.  .art.  94.  "  T*resiiiii])tion  of  iiinocenco.  If  tlic  com- 
mission of  a  crime  is  directly  in  issue  in  any  proceediug,  criminal  or  civil, 
it  must  be  proved  beyond  roasonablc  doubt." 


PRESUMPTIONS.  337 

evidence  which  is  needed  to  overcome  the  presumption; 
or,  in  other  words,  to  start  the  case  of  the  party  who  is 
silenced  by  it.  And  so,  wherever  any  specitic  result  is 
attributed  to  a  presumption  other  than  that  of  fixing  the 
duty  of  going  forward  with  proof.  This  last,  and  this 
alone,  appears  to  be  characteristic  and  essential  work  of 
the  presumption.  It  is  the  substantive  criminal  law  and 
the  substantive  law  as  to  persons  respectively  that  fix  the 
rule  about  the  strength  of  conviction  that  must  be  pro- 
duced in  the  mind  of  the  tribunal  in  order  to  hold  one 
guilty  of  crime,  or  to  find  a  child  born  in  wedlock  to  be 
illegitimate.^ 

While  it  is  obvious,  then,  that  a  presumption,  i.  e.,  the 
assumption,  .intendment,  taking-for-granted,  which  we 
call  by  that  name,  accomplishes,  for  the  moment  at  any 
rate,  the  work  of  reasoning  and  evidence,  it  should  be 
remarked,  as  I  have  said  before,  that  neither  this  result, 
nor  the  rule  which  requires  it,  constitutes,  in  itself,  either 
evidence  or  reasoning.  This  might  seem  too  plain  to 
require  mention  if  it  were  not  for  the  loose  phraseology  in 
which  courts  sometimes  charge  the  jury,  leaving  to  it  in  a 
lump  "all  the  evidence  and  the  presumptions,"  as  if  they 
were  capable  of  being  weiglied  together  as  one  mass  of 
probative  matter.     The  error  is  not  limited  to  trial  courts.^ 

1  People  V.  Cannon,  139  N.  Y.  32,  43,  47.  See  a  note  in  Chamber- 
layne's  edition  of  Best  on  Evidence,  s.  296,  in  which  my  friend,  the  editor, 
has  here  and  there,  by  permission,  done  me  the  honor  of  a  quotation. 

2  See  Appendix  B  for  some  notice  of  the  case  of  Coffin  v.  U.  S.,  156 
U.  S.  432,  in  which  there  is  presented  a  wholly  untenable  exposition  of 
what  is  called  the  "  presumption  of  innocence."  It  is  strangely  said  in 
this  opinion  that  "the  fact  that  the  presumption  of  innocence  is  recog- 
nized as  a  presumption  of  law  and  is  characterized  by  the  civilians  as  a 
jiresumptio  Juris,  demonstrates  that  it  is  evidence  in  favor  of  the  accused. 
For  in  all  systems  of  law  legal  presumptions  are  treated  as  evidence  giv- 
ing rise  to  resulting  proof  to  the  full  extent  of  their  legal  efficacy."  See 
infra,  568. 

The  operation  and  effect  of  rules  of  this  sort  may  be  seen  by  observing 
the  method  of  the  judges  in  one  or  two  cases. 

In  an  interesting  case  (Anderson  >-.  Morice,  L.  R.  10  C.  P.  C09  [1875]), 

22 


338  LAW   OF   EVIDENCE. 

Such  a  remark  might  pass  as  merely  a  loose  and  inaccu- 
rate way  of  saying  that  it  accomplishes  the  result  of  evi- 

where  a  ship  partly  loaded  with  a  cargo  of  rice  had  sunk,  at  her  anchors, 
in  port,and  where  the  buyers  were  suing  an  underwriter,  the  question 
was  whether  the  plaintiff  had  any  insurable  interest  in  what  was  aboard 
at  the  time  of  the  loss ;  whether,  as  Blackburn,  J.,  put  it,  if  uninsured,  he 
would  have  suffered  any  loss  from  the  destruction  of  this  rice.  In  reach- 
ing the  conclusion  that  he  would  not,  that  judge  reasoned  thus :  It  was 
tlie  plain  intention  of  the  parties  that  the  rice  should  he  at  the  plaintiff's 
risk  from  the  time,  at  any  rate,  when  the  lading  was  complete.  '  Each 
bag  may  have  been  at  his  risk  as  it  was  put  aboard,  if  tliis  was  the  inten- 
tion of  the  parties.  But  there  is  nothing  to  indicate  that  the  parties  had 
present  to  their  minds  any  such  question  as  that.  "  We  must  collect  the 
intention  from  the  words  used,  applying  to  them  the  general  rules  which 
the  courts  liave  from  time  to  time  adopted,  as  rules  to  enable  them  to 
ascertain  the  intention."  Now  it  is  a  rule  that  presumably  title  does  not 
pass  before  the  seller  has  done  what  the  contract  requires  of  him  in  order 
to  put  the  goods  into  that  state  in  which  the  buyer  is  bound  to  accept 
them ;  and  in  this  case  completing  the  lading,  so  that  shipping  docu- 
ments could  be  made  out,  seems  to  be  a  thing  thus  required  of  the  vendor. 
But  "this  is  only  &  prima  facie  indication  of  intention,  and  ...  it  must 
yield  to  anything  sufficiently  indicating  a  contrary  intention."  Yet  noth- 
ing of  that  sort  appears.  Risk  and  property  generally  go  together.  "  We 
.  .  .  proceed  on  the  ground  that  the  prima  facie  rule  of  construction 
[supra,  .316]  is  that  the  parties  intended  that  the  risk  should  become  that 
of  the  buyer,  when,  and  not  till,  tlie  whole  lading  was  complete,  so  as  to 
enable  tlic  sliippers,  by  getting  the  shipping  documents,  to  call  on  the 
buyer  to  accept  and  pay  for  the  cargo  ;  .  .  .  and  that  there  is  nothing  in 
this  contract  to  rebut  tiie  presumption  that  such  was  the  intention." 

Here  we  have  a  conclusion  of  fact  reached  by  applying  a  prima  facie 
rule  in  the  substantive  law  of  sale.  Supra,  315.  Compare  tliis  method 
with  that  of  Lord  Coleridge  at  the  earlier  stage  of  Ogg  v.  Shuter,  L.  R. 
10  C.  P.  159  (1875),  where,  in  dealing  with  somewhat  related  questions, 
there  i.s  ik)  resort  to  any  prima  facie  rule,  and  the  matter  is  treated  as  one 
of  mere  intention,  "  on  a  balance  of  the  various  circumstances  on  one  side 
and  tlie  other."  Tliis,  whetlier  rightly  or  wrongly  applied  in  the  case 
jnst  referred  to,  is  tlie  method  sjioken  of  by  Buller,  J.,  in  a  famous  passage 
in  his  first  opinion  in  Lickbarrow  v.  Mason,  2  'rerni  Rep.  ()3  :  "  We  find  in 
Slice  (;.  I'rfscott  that  Lord  Ilardwicke  himself  was  proceeding  with  great 
caution,  not  establisliing  any  general  principle,  l)ut  decreeing  on  all  the 
circumstances  of  tiie  case  ymt  togctlier.  Before  that  period  [1743],  we 
find  lh;it  in  courts  of  law  all  tlie  evidence  in  mercantile  cases  was  tlirown 
togetlicr:  tliey  were  left  generally  to  a  jury,  and  tlicy  produced  no  cstab- 


PRESUMPTIONS.  339 

(lence  or  reasoning,  if  it  were  not  that  sometimes  judges 
go  on  to  declare  that  the  presumption  is  in  itself  so  much 
probative  matter,  to  be  weighed  as  against  other  probative 
matter,  i.  e.,  is  evidence  in  the  proper  sense  of  the  word, 
and  make  this  notion  the  basis  of  a  decision.  Such  an 
error  is  quite  too  grave  and  harmful  to  be  overlooked. 

VI.  The  discrimination  between  presumptions  of  law 
and  what  are  infelicitously  termed  presumptions  of  fact, 
however  important  it  may  be  in  pleading  or  elsewhere,  is 
one  of  no  special  significance  in  the  law  of  evidence;  for 
all  presumptions,  other  than  the  mere  non-technical  recog- 
nition, by  courts,  of  ordinary  processes  of  reasoning  i  are 
the  subject  of  rules  of  presumption,  and  these  rules,  of 
whatever  varying  degrees  of  stringency  and  exactness  of 
application  they  may  be,  all  of  them,  belong  to  the  law 
and  are  rules  of  law.  They  may  or  may  not  be  enforced 
by  courts  in  granting  a  new  trial. ^  But  the  essential 
character  and  operation  of  presumptions,  so  far  as  the 
law  of  evidence  is  concerned,  is  in  all  cases  the  same, 
whether  they  be  called  by  one  name  or  the  other;  that  is  to 
say,  they  throw  upon  the  party  against  whom  they  work, 
the  duty  of  going  forward  with  the  evidence;  and  this 
operation  is  all  their  effect,  regarded  merely  in  their  char- 
acter as  presumptions."' 

lished  principle.  From  that  time,  we  all  know,  the  great  study  has  been 
to  find  some  certain  general  principles,  whicli  shall  be  known  to  all  man- 
kind, not  only  to  rule  the  particular  case  then  under  consideration,  but  to 
serve  as  a  guide  for  the  future.  Most  of  us  have  heard  these  principles 
stated,  reasoned  upon,  enlarged,  and  explained,  till  we  have  been  lost  in 
admiration  at  the  strength  and  stretch  of  the  human  understanding." 

1  Supra,  S\5  n.,  317,  .326. 

2  Best,  Ev.  ss.  314,  321,  323,  327.  "  We  find  the  same  presunii)tion 
spoken  of  by  judges' sometimes  as  a  presumption  of  law,  sometimes  as  a 
jjvesumption  of  fact,  sometimes  as  a  presumption  which  juries  should  be 
advised  to  make,  and  sometimes  as  one  which  it  was  obligatory  on  them 
to  make."  The  discussion  of  the  general  subject  of  presumptions,  in  our 
books,  and  the  attempted  classifications,  are  for  the  most  part  singularly 
ineffective.  See,  for  example,  the  works  of  Best  and  Matthews,  and  the 
ordinary  treatment  of  the  subject  by  our  courts,  e.  g.,  by  Scott,  J.,  in  a 
sound  opinion  in  Howe  v.  Barret,  28  Mo  388. 

8  Supra,  336. 


340  LAW  OF  EVIDENCE. 

There  appear  to  be  two  main  conceptions,  namely; 
(1)  that  of  such  presumptions,  intendments,  assumptions 
(whether  or  not  they  bo  founded  on  the  probative  quality 
of  the  facts  which  they  presuppose),  as  are  made  under 
a  requirement  of  law,  or  are  adopted  into  and  recognized 
as  part  of  the  law;  and  (2)  presumptions  not  thus  required 
or  recognized,  but  resting  merely  on  the  probative  quality 
of  the  facts  which  they  presuppose.  The  seven  years' 
presumption  of  death  is  an  example  of  the  first;  of  the 
second,  any  ordinary  antecedent  probability  may  suffice  as 
an  illustration,  e.  g.,  in  a  shipwreck,  in  the  absence  of  other 
facts,  the  probability  that  a  strong  man  who  was  a  good 
swimmer  outlived  his  companion,  a  feeble  invalid,  unable 
to  swim. 

These  last  are  forever  reappearing  in  the  courts,  and 
receiving  recognition  there,  and  are  thus  coming  from 
time  to  time  to  have  the  character  of  legally  recognized 
presumptions.  That  which  is  regularly  presumed  in 
trials,  and  which  thus  gets  to  be  a  commonplace  of  legal 
reasoning,  becomes,  at  the  same  time,  the  subject  of  a 
legal  rule  of  more  or  less  detiniteness.  Any  such  presump- 
tion which  obtains  recognition  in  the  courts  and  is  regu- 
larly applied  by  them,  and  laid  down  to  juries  as  a  precept 
of  legal  reasoning,  may  properly  be  called  a  legal  pre- 
sumption, and  the  subject  of  a  legal  rule  of  presumption.^ 

1  Tliere  is  great  looseness  on  this  subject  in  dealing  with  juries.  In 
an- important  capital  trial  in  Massachusetts,  in  1830  (Com.  r.  Knapp,  9 
Pick.  496,  519),  it  is  proliable  that  grave  consequences  followed  from  tliis 
sort  of  error ;  far  too  serious  an  emphasis  was  laid  on  a  matter  of  mere 
ordinary  probability,  by  laying  it  down  to  the  jury  as  a  "  legal  presum])- 
tion."  In  order  to  convict  the  defendant,  in  the  case  referred  to,  it  was 
essential  to  show  that  he  was  pre.sent  at  the  murder  by  agreement  vvitli 
the  princi])al ;  or  with  liis  knowledge,  aiding  and  abetting.  He  had  pre- 
viously conspired  with  the  principal  oif  cnder,  now  dead  and  unconvicted,  and 
at  the  time  of  the  crime  was  in  a  street  near  by,  where  he  miglit  have  given 
or  acted  on  a  signal.  He  was  tlierefore  "  present ;  "  but  tliere  was  no  evi- 
dence as  to  hi.s  being  there  hy  agreement,  exce])t  tlie  natural  probabilities  of 
the  situation.  Tlie  Cfiurt,  liowever,  charged  tlic  jury  that  if  the  prisoner, 
being  a  co-conspirator,  was  wliere  lie  could  aid  at  the  time  of  the  murder, 


PRESUMPTIONS.  341 

The  quite  modern  facility  in  using  the  contrasted 
phrases,  presumption  of  law  and  presumption  of  fact,  has 
been  attended  with  some  attempt  to  introduce  into  our 
system  the  niceties  of  the  continental  classification  of  the 
thousand  and  one  assumptions,  positions,  presumptions, 
—  on  innumerable  subjects,  —  which  have  a  place  among 
the  civilians.  It  has  been  the  old  mistake  of  pouring 
new  wine  into  old  bottles,  and  old  wine  into  new.  The 
rough  and  general  conception,  indeed,  of  the  difference 
between  their  presumptio  juris,  as  that  which  has  a  place 
in  the  law,  and  so  is  a  rule  of  law,  on  tlie  one  hand;  and 
their  prcesumptlo  homlnis,  as  that  which  has  no  place  in 
the  law,  and  is  merely  in  arbitrio  judicis,  as  addressing 
itself  only  to  the  rational  faculty,  —  is  indeed  sound  and 
helpful.  But  when  our  writers  or  judges  undertake  to 
follow  the  civilians  out  into  such  a  discussion  as  the  gen- 
eral  one,    whether   presumptions    are   matter   of    law   or 

"  then  it  would  follow  as  a  legal  presumption  that  he  was  there  to  carry 
into  effect  the  concerted  crime,  and  it  would  be  for  the  prisoner  to  rebut 
the  presumption  by  showing  to  the  jury  that  he  was  there  for  another 
purpose,  unconnected  with  the  conspiracy."  In  point  of  fact,  although 
there  was  no  evidence  on  the  subject,  it  had  been  understood  between  the 
principal  and  Knapp  that  the  latter  should  go  home  and  go  to  bed.  He 
had  done  so,  but,  unknown  to  the  actual  murderer,  had,  in  his  anxiety,  got 
up  again  and  gone  out  to  the  place  above  named,  merely  to  learn  the  re- 
sult. 6  Webster's  Works,  49.  It  seems  likely,  in  this  case,  that  this 
unexplained  use  of  the  term  "  legal  presumption,"  and  this  declaration  as 
to  the  pri.soner's  duty  of  rebutting  it,  contributed  materially  towards  what 
was  felt  to  be  the  difficult  result  of  a  conviction.  In  that  point  of  view 
the  case  may  serve  as  a  conspicuous  warning  against  loose  modes  of 
expression  very  common  in  our  courts.  To  be  sure,  the  men  who  were 
hanged  in  this  case  well  deserved  their  fate,  —  had  the  law  been  adequate  ; 
but  in  the  next  case,  where  feeling  runs  high,  they  may  not  deserve  it. 

Such  rules  are  frequently  misconceived.  Forgetting  their  character 
as  rules  operating  only  in  the  absence  of  evidence  other  than  what  the 
facts  named  in  the  rule  itself  present,  it  is  not  uncommon  to  add  to  a 
mass  of  evidence  a  statement  of  a  rule  of  presumption  which,  by  the  in- 
troduction of  this  evidence,  has  become  inapplicable.  The  natnre  of  this 
error  has  been  happily  pointed  out  in  the  courts  of  Missouri.  See,  for 
example,  Morton  v.  Heidorn,  135  Mo.  608  (1896). 


342  LAW   OF   EVIDENCE. 

matter  of  fact,  —  Prcesumj^tio  an  sit  quid  juris,  reZ  facti, ' 
—  and  into  the  subject  of  conflicting  presumptions,  — 
whether  Prccsumptio  una  validior  et  firmior  altera,  and 
Quando  una  2-'?'^*"?*'?^i^^'^o  alteram  tollat  et  diluat,-  —  the 
matter  becomes  very  unsuitable  to  our  system  of  law,  and 
something  much  more  than  unprofitable.  This  puzzling 
and  uninstructive  term  "  presumption  of  fact "  is  not  found 
at  all  in  the  Eoman  law,  nor  is  it  a  leading  one  among  the 
continental  writers.  Their  contrast,  as  is  said  above,  is 
between  presianptio  juris  and  presumptio  liominis.^ 

1  Menochius,  de  prces,  lib.  1,  qu.  11. 

■^  lb.  qu.  29  and  30.  The  enormous  detail  of  these  continental  discus- 
sions may  be  guessed  at  when  it  is  observed  that  the  treatise  of  Menochius, 
an  Italian  who  wrote  in  the  latter  part  of  the  sixteenth  century  De  Prcesump- 
tionibus,  Conjecturis,  Signis,  et  Indiciis,  has  1167  tall  folio  pages  in  double 
columns  and  fine  print.  They  are  of  little  if  any  importance  in  a  system 
where  jury  trial  prevails. 

3  Divisio  quam  ipsemet  Baldus  receuset  .  .  .  cum  dixit  prajsump- 
tionem  aliam  esse  legis  aliam  hominis  et  prsesumptionem  illam  legis, 
aliquando  esse  simpliciter  juris,  aliquando  juris  et  de  jure.  Quam  sane 
divisionem  ceteri  fere  omnes  sunt  secuti.  .  .  .  Rectius  itaque  ex  nos- 
trorum  fere  omnium  sententia  sic  nos  dividimus  praisumptiouem,  ut  una 
sit  juris  et  de  jure,  altera  juris  tantum,  tertia  vero  liominis.  Menoch. 
de  prcBS.,  lib.  1,  qu.  2.  And  so  in  an  Irish  case,  the  earliest  case  where  I 
have  observed  these  Latin  phrases  in  our  books,  in  1743  (Annesley  v.  An- 
glesea,  17  St.  Tr.  1130,  1430),  Baron  Mounteney,  after  some  explanations, 
says  to  the  jury  :  "These  are  called  presumptions  /(»•/.<  et  de  Jure.  Again 
there  are  presumptions  of  law,  as,  likewise,  what  the  writers  upon  this 
subject  call  presumptions  of  man." 

It  should  be  added  that  all  this  ])hraseology  and  all  the  multitudinous 
details  and  refinements  of  the  di.^cussions  over  presumptions,  belong  not 
at  all  to  the  Roman  law  or  tlie  Corpus  Juris.  They  originated  in  the 
continental  jurists  of  a  much  later  time.  Ortolan  (Hist.  Rom.  Law,  liy 
Pricliard  and  Nasmith,  644),  in  speaking  of  absolute  presumptions,  says  : 
"It  is  this  presumption  which  the  commentators  have  called,  in  barbarous 
Latin  which  never  belonged  to  Roman  law,  Pra'sumptiojnrt.'i  et  de  Jure. 
In  other  cases,  where  law  makes  its  induction,  it  allows  more  or  less  lati- 
tude, th.at  is  to  say,  it  permits  the  parties  concerned  to  question  the  sound- 
ness of  the  iiiiliiitinii.  ...  It  is  this  presumption  that  t/ic  commentators 
liavc  called,  luidin  on  their  own  sole  (tiithoritij,  Prwsitmptio  juris  tantum.  .  .  . 
I'reaumptions  —  that  is  to  say,  those  conclusions  or  deductions  which  are 
drawn  bv  a  j)ro(("^s  of  probable  reasoning,  as  t/ie  result  of  experience,  from 


PEESUMPTIONS.  343 

VII.  As  to  the  subject  of  conflicting  presumptions,  I 
have  alluded  to  it  as  an  exotic,  ill  adapted  to  an  English 
or  North  American  climate.  At  common  law  our  prin- 
cipal triers  of  fact  are  that  changing,  untrained  body  of 
men  the  jury,  to  whom  it  would  be  idle  to  address  such 
speculations  on  this  subject  as  fill  the  books  of  the  civilians; 
the  considerations  which  are  to  govern  and  sway  their 
thoughts  must  bo  large,  simple,  untechnical.  Nor  are 
these  refinements  much  better  adapted  to  the  mental 
habits  of  our  judges.  The  jury  system  has  reacted  upon 
them,  and  upon  the  body  of  law  which  they  administer,  in 
a  way  to  keep  forever  in  the  foreground,  in  determining 
matters  of  fact,  the  thought  of  convenience,  and  of  easily 
applied  principles  of  practical  sense.  The  continental 
methods  were  deeply  infected  with  what  has  been  called 
"the  substitution  of  arithmetic  for  observation  and  reason- 
ing, when  estimating  the  value  of  evidence."  Their 
writers  were  dealing  with  "a  system  of  technical  and,  as 
it  were,  mechanical  belief,  dependent  on  the  presence  of 
instruments  of  evidence  in  some  given  number;  and  which 

something  which  is  taken  for  granted  —  were  not  classified  by  the  Roman 
jnrists,  nor  were  the}-  treated  differently  from  other  forms  of  proof." 

It  may  be  well  to  remember,  as  I  have  intimated  above,  that  the  pres- 
ent common  talk  about  presumptions  as  being  those  of  law  and  of  fact, 
and  the  introduction  of  the  Latin  phrases,  are  quite  modern.  The  treat- 
ises on  Evidence  before  Phillips,  in  1814,  have,  I  believe,  nothing  of  it, 
except  that  Lofft,  in  editing  Gilbert,  in  1791,  slightly  introduces  the 
phrase  presumption  of  fact.  It  was  not  until  Greenleaf's  Evidence,  in 
1842,  and  Best's  Presumptions,  in  1844,  that  the  phraseology  of  our  text- 
books was  fairly  shaped  on  the  present  models.  See,  however,  the  dis- 
cussion of  them  in  18-31,  infrn,  .539.  That  the  distinction  of  presumptions 
of  law  and  presumptions  of  fact,  so  far,  at  least,  as  the  law  of  evidence  is 
concerned,  is  a  poor  and  confusing  one,  is  shown  by  our  cases.  It  may 
serve  to  indicate  how  likely  we  are  to  be  misled  in  adopting  continental 
terms  when  we  observe  that  the  prresumptio  juris  et  de  jure  was  not,  with 
them,  what  we  are  generally  told  to  consider  it,  absolutely  and  always  a 
conclusive  one.  Henoch,  lib.  1,  qu.  60-85.  That  fact  may  serve  to  relieve 
the  continental  law  from  the  reproach  of  Austin,  when  he  says:  "It  is 
absurd  to  style  conclusive  inferences  presumptions."  Jurisp.  i.  507, 
London,  1873. 


344  LAW   OF   EVIDENCE. 

has  been  designated  by  Bonnier  .  .  .  systeme  qui  turifait 
les  temoignages,  an.  lieu  de  les  soumiettre  a  la  conscience  du 
juge.^^^  But  of  our  system,  it  has  been  said  by  the  same 
writer  that  "by  taking  out  of  the  hands  of  the  judge  the 
actual  decision  on  the  facts,  and  the  application  of  the 
law  to  them,  it  cuts  up  mechanical  decision  by  the  roots, 
prevents  artificial  systems  of  proof  from  being  formed, 
and  secures  the  other  advantages  of  a  casual  tribunal."  ^ 
Unfortunately,  however,  the  writer  just  mentioned  has 
himself  tried  to  introduce  into  our  law  parts  of  that  con- 
tinental method  which  he  so  justly  condemns.^  Not  much 
success  has  attended  the  attempt,  and  so  far  as  it  succeeds 
it  is  not  likely  to  produce  anything  but  harm.  In  one 
case,  earlier  than  his  time,  in  1819,  an  ill-starred  effort 
was  made  to  use  the  notion  of  conflicting  presumptions  in 
dealing  with  a  settlement  case.*  Paupers  were  removed 
to  Twyning  as  being  the  wife  and  children  of  one  Burns. 
The  legality  of  the  order  depended  on  whether  a  former 
husband.  Winter,  was  living  at  the  time  of  the  marriage 
with  Burns.  The  marriage  with  Winter  was  about  seven 
years  ago.  Winter,  after  living  with  his  wife  there- 
after for  a  few  months,  enlisted  as  a  soldier,  went  abroad 
in  the  foreign  service,  and  was  never  again  heard  from. 
A  little  more  than  a  year  after  this  enlistment  the  woman 
married  Burns,  had  cohabited  with  him  ever  since,  and 
had  by  him  the  children  above  named.  It  was  held  that 
the  decision  below  Avas  right,  on  the  ground  that  it  wxis 
"a  case  of  conflicting  presumptions,  and  tlie  question  is 
which  is  to  prevail.  .  .  .  The  presumption  of  law  is  that 
[Winter]  was  not  alive  when  the  consequence  of  his  being 
so  is  that  another  person  has  committed  a  criminal  act." 

'  Best,  Ev.  ss.  71,  G9.  In  the  two  or  three  sections  of  Best  which  pre- 
cede and  follow  tliese,  may  be  found  sonic  brief  account  of  the  former  arti- 
ficial method  of  the  Continent.  ■^  lb.  s.  85. 

3  lb.  Hs.  .328-336,  as  to  conflicting  presumptions.  lie  observes  (s.  330) 
that  the  subject  "sccnis  almost  to  have  escaped  tlie  notice  of  the  writers 
on  English  law." 

<  11.  V.  TwyninJ,^  2  15.  A  AM.  386. 


PRESUMPTIONS.  345 

The  true  analysis  of  such  a  case  seems  rather  to  be 
this :  We  observe  that  the  party  seeking  to  move  the  court 
proved  the  existing  marriage  (contracted,  between  five  and 
six  years  ago)  and  chiklren  born  of  it.  On  the  otlier 
side,  the  only  evidence  to  prove  the  invalidity  of  this 
marriage  was  the  fact  of  another  one,  contracted  about 
seven  years  ago,  and  the  disappearance  of  the  first  husband 
a  few  months  thereafter  (about  a  year  earlier  than  the 
second  marriage),  on  occasion  of  his  enlisting  and  going 
abroad  in  the  foreign  military  service;  that  husband  had 
never  been  heard  of  since.  These  facts  might  well  seem 
inadequate,  in  evidential  force,  to  impeach  the  validity 
of  the  existing  marriage,  and  the  legitimacy  of  the  chil- 
dren. For  one  thing,  the  absence,  although  not  long,  was 
upon  a  dangerous  service.  Presumptions  are  displaced 
or  made  inapplicable  by  such  special  facts.  It  was  not 
strange,  therefore,  in  1835,  to  find  the  matter  handled  in  a 
different  way.^  Here  the  first  spouse  had  been  heard  from 
up  to  twenty -five  days  before  the  second  marriage  as  having 
written  to  her  family  at  that  time,  and  the  court  quashed 
an  order  which  assumed  the  validity  of  the  second  mar- 
riage. Lord  Denman,  C.  J.,  said:  "I  must  take  this 
opportunity  of  saying  that  nothing  can  be  more  absurd 
than  the  notion  that  there  is  to  be  any  rigid  presumption 
of  law  on  such  questions  of  fact,  without  reference  to 
accompanying  circumstances,  such,  for  instance,  as  the 
age  or  health  of  the  party.  .  .  .  The  only  questions  in 
such  cases  are,  what  evidence  is  admissible  and  what  in- 
ference may  fairly  be  drawn  from  it."^ 

1  King  V.  Harborne,  2  Ad.  &  El.  540.  Compare  State  v.  Plym,  43 
Minn.  383. 

2  The  sudden  emergence,  in  an  English  court,  in  1819,  of  this  continen- 
tal doctrine  of  conflicting  presumptions,  may  perhaps  be  accounted  for  by 
the  influence,  in  that  case,  of  the  counsel  whose  contention  was  successful, 
namely,  W.  D.  Evans.  This  can  hardly  be  other  than  the  learned  translator 
and  editor  of  Pothier  on  Obligations,  whose  acquaintance  with  continental 
speculations  had  been  brought  into  relation  with  the  English  law  in  his 
valuable  Appendix  to  that  work,  being  the  second  volume,  published  in  1 806 


346  LAW   OF   EVIDENCE. 

VIII.  It  is  one  of  the  commonest  of  errors  to  misap- 
prehend the  scope  and  limitations  of  the  ordinary  rules 
and  maxims  of  presumption;  and  to  attribute  to  them  a 
mistaken  quality  and  force.  They  are,  as  we  have  seen, 
merely  pinma  facie  precepts;  and  they  presuppose  only 
certain  specific  and  expressed  facts.  The  addition  of 
other  facts,  if  they  be  such  as  have  evidential  bearing, 
may  make  the  presumption  inapplicable.  All  is  then  turned 
into  an  ordinary  question  of  evidence,  and  the  two  or  three 
general  facts  presupposed  in  the  rule  of  presumption  take 
their  place  with  the  rest,  and  operate,  with  their  own 
natural  force,  as  a  part  of  the  total  mass  of  probative 
matter.  Of  course  the  considerations  which  have  made 
these  two  or  three  facts  the  subject  of  a  rule  of  presump- 
tion may  still  operate,  or  may  not,  to  emphasize  their 
quality  as  evidence;  but  the  main  point  to  observe  is,  that 
the  rule  of  presumption  has  vanished.  For  example,  in 
the  first  of  the  settlement  cases  above  mentioned  the  sup- 
posed rule  of  presumption  as  to  the  continuance  of  life  for 
seven  years  (since  repudiated  in  England)  ^  dealt  only  with 
the  general  and  colorless  supposition  of  absence  not  heard 
from.  It  did  not  suppose  going  abroad  in  the  military 
service. 

A  conspicuous  illustration  of  the  error  now  in  question 
may  be  seen  in  an  observation  of  Lord  Campbell,  in  a  case 
in  the  House  of  Lords  in  1849.^  In  a  discussion  on  legiti- 
macy, Lord  Campbell  remarked:  "So  strong  is  the  legal 
presumption  of  legitimacy  that  if  a  white  woman  have  a 
mulatto  cliild,  altliough  the  husband  is  white  and  the  sup- 
posed paramour  black,  the  child  is  presumed  legitimate,  if 
tliere  were  any  opportunities  for  intercourse."  Now  there 
might,  witliout  absurdity,  be  a  doctrine  which  fixed  upon 
a  husband,  even  under  sucli  circumstances,  the  legal 
responsibilities  of  a  father;  according  to  the  rough'  pro- 

1  Ncpoan  v.  Doo  d.  Kni^lit,  2  M.  &  W.  894;  Thene's  Trusts,  L.  R.5Ch. 
1.39. 

2  I'icrH  V.  Piers,  13  Jurist,  509,  572. 


PRESUMPTIONS.  347 

verbial  wisdom,  quoted  by  a  vigorous  English  judge  four 
or  five  centuries  ago,  "  who  that  bulleth  my  cow  the  calf 
is  mine."  ^  But  as  the  English  law  actually  stands,  doubt- 
less Lord  Campbell  had  introduced  into  his  suppositioQ 
such  unusual  facts  as  dissolved  and  evaporated  any  rule  of 
presumption.  It  never  was  a  rule  that  the  mere  opportu- 
nity for  intercourse  between  an  English  husband  and  wife, 
gave  rise  to  a  presumption  that  he  was  the  father  of  her 
child  under  the  specific  circumstances  named.  On  the 
contrary  it  was  a  just  contention,  in  North  Carolina,  in 
1872,  when  a  colored  child  of  a  white  married  woman  was 
exhibited  to  the  jury  as  "proof  that  it  was  impossible" 
that  the  white  husband  of  the  woman  could  be  its  father.'^ 

IX.  It  will  be  profitable  to  speak  of  one  or  two 
singular  cases  which  illustrate  further  those  aspects  of 
the  subject  considered  in  the  last  two  subdivisions  of  the 
present  chapter. 

In  an  English  case,  in  1881,^  the  defendant  was  indicted 
for  bigamy  in  marrying  A  in  1880,  while  his  wife  B, 
married  by  him  a  year  before,  in  1879,  was  living.  When 
these  marriages  and  the  present  life  of  B  had  been  proved, 
the  defendant  on  the  other  hand  showed,  by  the  record, 
his  own  previous  conviction  upon  an  indictment  for 
bigamy;  he  had  married  C  in  1868,  while  his  wife  D, 
married  four  years  before,  was  still  living.  Thus  he 
introduced  into  the  case  facts  having  a  tendency  to  show 
that  B,  like  several  other  women  in  like  condition,  was 
not  his  wife.  And  so  the  case  was  left.  How  should 
these  facts  be  treated  ?  On  some  theory  of  conflicting 
presumptions,  and  their  relative  force  ?  Or  simply  by 
having  regard  to  the  evidential  quality  of  the  facts,  and  to 

1  Eickhill,  J.,  "  Si  cestuij  John,  fnit  deins  la  mere,  issue  fuit  mulier,  et 
issi)it  Iieire  quant  il  fuit  issue  male.  For  who  that  bulleth  my  cow,  the  calf 
is  mine."  Y.  B.  7  H.  IV.  9,  1.3  (1406).  Compare  Shakespeare,  King  John, 
Act  I.  scene  1,  where  the  king  is  talking  with  Robert  Faulconbridge. 

'^  Warlich  v.  White,  76  No.  Ca.  175. 

3  Reg.  V.  Willshire,  6  Q.  B.  D.  366. 


348  LAW  OF  EVIDENCE. 

the  relative  duty  of  the  government  and  the  accused,  in 
establishing  and  defending  tlie  case  ?  By  the  latter 
method  the  essential  inquiry  was  (1)  whether  D,  the  true 
and  still  undivorced  wife,  was  living  when  B  was  married  ? 
and  (2)  supposing  that  matter  to  be  left  in  doubt,  who 
loses  ?  It  may  be  said  that  there  is  a  presumption  of  his 
own  innocence,  working  in  favor  of  the  prisoner,  and  a 
presumption  of  somebody  else's  life,  working  against  him. 
But  the  presumption  of  innocence  means  only  that  the 
defendant  is  not  to  suffer  on  his  trial  from  being  charged 
Avith  guilt  and  held  on  the  charge;  and  that  he  must  not 
be  found  guilty  on  appearances,  or  suspicions,  or  anything 
but  evidence  establishing  guilt  beyond  a  reasonable  doubt. 
And  what  does  the  presumption  of  life  mean  ?  In  Eng- 
land it  is  only  a  general  supposition  of  continuance,  appli- 
cable to  everything  which  has  once  been  proved  to  exist  — 
to  an  orange  as  well  as  a  man;  —  a  presumption  which 
serves,  in  reasoning,  to  relieve  from  the  necessity  of  con- 
stantly re-proving,  from  minute  to  minute,  this  once  proved 
fact  of  existence. 

The  presumption  of  death  at  the  end  of  seven  years 
had  no  application  in  the  case  under  discussion,  because 
that  assumes  absence  not  heard  from  ;  and  such  an  absence 
was  not  found  here.^  The  government,  of  course,  had  to 
make  out  guilt  beyond  a  reasonable  doubt;  the  accused 
needed  only  to  create  such  a  doubt.  Guilt  depended  on 
whether  D,  living  on  April  22,  1868,  when  C  was  married, 
was  alive  on  Sept.  7,  1879,  when  B  was  married.  The 
government,  to  succeed,  must  satisfy  the  jury  beyond  a 
reasonable  doubt  of  a  proposition  which  included  the  fact 
tliat  D  was  then  dead.  The  accused,  to  be  discharged, 
must,  at  least,  create  a  reasonable  doubt  whether  she  was 
then  alive. 

In  fact,  the  case  was  disposed  of  below  by  hokling  that, 
as   tlie   evidence   lay,   "the   burden   of   proof  was  on  the 
prisoner;"  and    lie    was    convicted.      But   on   a   question 
1  J)(j\vd  V.  Watsou,  105  N.  C.  476. 


PRESUMPTIONS.  349 

reserved  "whether  he  was  properly  convicted,"  the  con- 
viction was  quashed.  Lord  Coleridge,  C.  J.,  talked  of  con- 
flicting presumptions,  and  held  it  wrong  to  withdraw  from 
the  jury  "the  determination  of  the  fact  from  these  con- 
flicting presumptions.  .  .  .  The  prisoner  was  only  bound 
to  set  up  the  life;  it  was  for  the  prosecution  to  prove  his 
guilt."  Lindley,  J.,  simply  put  it:  "There  was  evidence 
both  ways :  This  evidence  was  not  left  to  the  jury,  conse- 
quently the  conviction  cannot  stand."  Hawkins,  J.  "  There 
was  proof  that  Ellen  [D]  was  alive  in  1868;  there  was  a 
presumption  that  her  life  continued.  The  only  evidence 
to  the  contrary  was  that  the  prisoner  presented  himself  as 
a  bachelor  to  be  married  in  1879.  Whether  that  would 
have  satisfied  the  jury  that  his  former  wife  was  then  dead 
was  a  question  for  them  to  decide,  but  it  was  not  left  to 
them  for  decision."  Lopes,  J.  "  There  was  evidence  both 
ways  .  .  .  which  should  have  been  left  to  the  jury." 
Bowen,  J.,  was  "of  the  same  opinion."  The  case,  then, 
was  rightly  disposed  of;  and  the  notion  of  conflicting 
presumptions  had  no  real  bearing  upon  it. 

Another  case  covers  a  point  referred  to  by  a  distin- 
guished writer  on  Evidence,  as  destitute  of  authority.^  In 
Wisconsin  a  husband,  on  the  death  of  his  wife,  claimed, 
and  was  at  first  allowed,  in  the  lower  courts,  an  estate  by 
the  curtesy  in  certain  real  estate  of  which  she  died  seized. 
Under  the  statutes  of  Wisconsin  his  right,  as  against  a 
daughter  of  the  wife  (bearing  in  this  case  his  name,  and 
born,  fully  developed,  five  months  after  his  marriage  with 
her  mother,  but  claiming  now  to  be  the  daughter  of  a 
former  husband),  depended  on  the  truth  of  the  daughter's 
contention.  Mvs.  Shuman  had  married  Ingle  in  April, 
1880,  and  was  divorced  from  him  on  November  15,  1884. 
She  married  the  plaintiff,  Shuman,  on  February  10,  1885, 
and  the  defendant  was  born  July  8,   1885,  a  mature  and 

^  "  I  am  not  aware  of  any  decision  as  to  the  paternity  of  a  child  born 
say  six  months  after  the  death  of  one  hnshand,  and  three  months  after  the 
mother's  marriage  to  another."     Stephen,  Dig.  Ev.  art.  98  n. 


350  LAW   OF   EVIDENCE. 

fully  grown  cliilcl.  The  divorce  from  Ingle  had  been 
granted  on  the  suit  of  the  husband,  begun  October  3,  1884, 
whicli  was  undefended.  The  ground  of  the  application 
for  divorce  was  desertion,  in  that  the  wife  had  refused 
sexual  intercourse  with  the  husband  for  nearly  two  years 
last  past,  and  declared  that  she  would  never  again  allow 
it;  and  the  evidence  of  the  husband  on  the  divorce  hearing 
had  substantiated  these  allegations.  It  appeared,  how- 
ever, at  the  trial  of  the  present  case  that  for  several 
months,  before  and  down  to  the  date  of  the  judgment  of 
divorce,  the  husband  and  wife  lived  in  the  same  house, 
conversed,  ate  at  the  same  table,  lodged  in  adjoining  rooms, 
with  a  connecting  door,  and  had  full  opportunity  for  inter- 
course. The  Supreme  Court  of  Wisconsin  sustained  the 
rejection  by  the  last  court  below,  of  the  evidence  of  the 
complaint  and  testimony  in  the  divorce  proceedings,  and 
its  decision  that  the  defendant,  while  having  the  name  of 
the  second  husband,  was  the  daughter  of  the  first.  ^  In  a 
like  case  it  would  be  easy  to  suppose  the  second  marriage 
taking  place  soon  after  the  death  of  the  first  husband,  and 
when  the  wife  was  in  an  advanced  state  of  pregnancy.  ^ 
Or  to  suppose  a  prompt  second  marriage  so  soon  after  the 
first  husband's  death,  that  a  child  might  have  been  be- 
gotten in  wedlock  by  either.^ 

1  Shuman  v.  Shuman,  83  Wis.  250  (1892).  See  also  Shuman  v.  Hurd, 
79  Wis.  054,  wliere  the  dates  differ  sliglitly.  The  court,  Lyou,  C.  J.,  said : 
'■'  Tlie  rules  of  evidence  by  wiiicli  it  must  ho  determined  whether  Frances  M. 
is  or  is  not  tlie  lawful  issue  of  the  marriage  of  her  mother  and  Andrew 
Ingle,  are  unaffected  by  the  fact  that  slie  was  born  after  the  marriage 
of  her  mother  and  Alexander  Shuman.  Tlie  last  marriage  may  save 
Frances  M.  from  being  a  bastard  in  case  Andrew  Ingle  is  not  her  father ; 
but  the  same  proof  is  required  to  demonstrate  that  he  is  not  her  father, 
as  would  1)0  re(iuired  had  the  last  marriage  not  taken  place,  and  were  she 
claiming  as  heir  of  Ingle." 

2  Cmi.aro  the  case  of  Ciardner  v.  r.ardncr,  2  Ai)p.  Cas.  723,  where  the 
woman  was  not  marricil  wlion  the  child  was  begotten,  and  the  judges  speak 
of  the  prcsnmjttion  as  being  exceedingly  strong  that  the  husband  was  the 
falhcr  of  the  cliild. 

■'  A  case  repeatedly  put  in  our  books,  c.ij.,  in  1347,  by  R.  Thorp,  in  Y.  B. 


PRESUMPTIONS.  351 

To  undertake  to  settle  such  questions  as  these  (and  they 
may  easily  be  complicated  by  the  introduction  of  other 
facts)  by  any  comparison  of  the  strength  of  the  presump- 
tions would  be  foreign  to  our  common-law  methods.  The 
bringing  forward  of  unusual  facts,  as  we  have  seen,  often 
discharges  the  whole  matter  from  the  operation  of  pre- 
sumptions, and  like  Coke's  estoppel  against  estoppel 
"doth  put  the  matter  at  large."  ^ 

X.  In  closing  this  long  discussion,  it  may  be  remarked 
that  the  numberless  propositions  figuring  in  our  cases 
under  the  name  of  presumptions,  are  quite  too  heterogene- 
ous and  non-comparable  in  kind,  and  quite  too  loosely 
conceived  of  and  expressed,  to  be  used  or  reasoned  about 
without  much  circumspection.  Many  of  them  are  grossly 
ambiguous,  true  in  one  sense  and  false  in  any  other; 
some  are  not  really  presumptions  at  all,  but  only  wearing 
the  name;  some  express  merely  a  natural  probability, 
and  others,  for  the  sake  of  having  a  definite  line,  estab- 
lish a  mere  rule  of  legal  policy;  very  many  of  them,  like 
the  rule  about  children  born  in  wedlock,  lay  down  a, prwia 
facie  rule  of  the  substantive  law,  and  others,  a  rule  of 

21  Ed.  III.  40,  wliere  Wilugliby,  J.,  follows  it  up  by  saying,  "  I  heard  the 
same  case  ooce  demauded  of  Sir  William  de  Bereford,  [a  justice  iuthe  time 
of  Edward  I.  aud  II.]  — to  which  of  the  two  husbands  he  should  be  ad- 
judged ;  and  ho  answered  tliat  the  son  might  choose  either."  And  so  Co. 
Lit.  8.  In  AIsop  c.  Stacy,  Palmer,  9  ;  s.  c.  Cro.  Jac.  541,  sub  nom.  Alsop  ?>. 
Bowtrell,  a  record  of  1394-5  was  cited,  where  a  woman's  first  husband  died, 
and  she  married  and  had  a  child  in  two  hundred  and  ninety-one  days  after 
the  first  husband's  death,  and  it  was  adjudged  the  child  of  the  second 
husband.  lu  the  principal  case  the  court  held  a  child  born  of  a  widow,  iin 
lewd  et  licjht  damosel,  290  days  after  the  husband's  death  to  be  his  child ; 
and  Dodridge,  J.,  took  a  distinction  between  this  case  and  the  other,  in  that 
it  would  make  the  child  a  bastard  if  it  should  be  held  otherwise  here,  while 
in  the  other  case  he  would  be  legitimate  either  way.  As  Blackstone  per- 
mits liimself  to  remark  ( 1  Bl.  Com.  459)  he  would  be  "  more  than  ordinarily 
legitimate." 

1  Co.  Lit.  352  b.  Compare  Alciatus,  Op.  i.  901,  30,  Alia  prcesumptio 
aliarn  tollit ;  and  ib.  iii.  231,  40.  See  the  clear  and  sensible  language  of 
Denio,  J.,  in  Caujolle  v.  Ferrie',  23  N.  Y.  90,  138,  and  of  Lord  Hatherley 
in  Gardner  v.  Gardner,  2  App.  Cas.  723,  732. 


352  LAW  OF  EVIDENCE. 

general  reasoning,  and  of  procedure,  founded  on  conven- 
ience or  probability  or  good  sense;  like  the  wide-reaching 
principle  which  "  presumes  a  usual  and  ordinary  state  of 
things  rather  than  a  peculiar  and  exceptional  condition, 
.  .  .  legality  rather  than  crime,  and  virtue  and  morality 
rather  than  the  opposite  qualities ;  which  demands  a  con- 
struction of  evidence  as  well  as  of  written  language,  ut  res 
viagls  valeoyt  quam  pereat.''^  ^  Some  are  maxims,  others 
mere  inferences  of  reason,  others  rules  of  pleading,  others 
are  variously  applied;  as  tlie  presumption  of  innocence 
figures  now  as  a  great  doctrine  of  criminal  procedure,  and 
now  as  an  ordinary  principle  in  legal  reasoning,  or  a  mere 
inference  from  common  experience,  or  a  rule  of  the  law  of 
evidence.  Among  things  so  incongruous  as  these  and  so 
beset  with  ambiguity  there  is  abundant  opportunity  for 
him  to  stumble  and  fall  who  does  not  pick  his  way  and 
walk  with  caution. 

1  Per  Denio,  J.,  in  Caujolle  r.  Ferrie,  23  N.  Y.  90,  138. 


THE  BURDEN  OF   PROOF.  353 


CHAPTER  IX. 

THE   BURDEN   OF   PROOF. 

Whoever  enters  on  a  legal  controversy  needs  to  know 
with  precision  what  is  in  dispute,  in  point  of  substantive 
law,  in  point  of  fact,  and  in  point  of  form.  All  this  he 
must  know  before  he  reaches  the  trial.  The  ascertaining 
of  it  belongs,  properly,  to  the  period  when  you  state  your 
case,  the  period  of  pleading.  It  matters  not  what  be  the 
purpose  of  pleading,  whether,  as  in  the  Roman  system,  it 
be  "  to  give  notice  to  the  parties  respectively  of  the  facts 
intended  to  be  proved,"  or,  as  at  the  common  law,  "to 
separate  the  law  from  the  facts,  and  to  narrow  the 
latter  down  to  a  single  issue,  with  a  view  to  a  trial  by 
jury,"^  —  the  rules  of  correct  pleading  involve  the  ascer- 
taining of  all  these  preliminaries.  At  any  rate,  they  are 
not  to  be  learned  from  the  law  of  evidence,  which  has 
no  precepts  at  all  on  these  subjects.  That  branch  of  the 
law  is  wholly  concerned  with  a  later  stage  of  the  proceed- 
ings, the  trial;  and  with  the  presentation  to  the  tribunal 
of  evidential  matter  for  enabling  it  to  answer  questions 
which  should  have  been  previously  ascertained  and  shaped, 
and  are  now  assumed  to  be  known. 

The  term  "burden  of  proof"  designates  a  topic  which, 
in  great  part,  belongs  to  this  preliminary  stage  of  the 
proceedings.  So  far  as  it  imports  the  duty  of  ultimately 
establishing  any  given  proposition,  the  principles  which 
govern  it  belong  wholly  to  that  stage. 

1  Langdell,  Eq.  Plead.  (2d  ed.)  s.  34. 
23 


354  LAW  OF  EVIDENCE. 

But  the  phrase  is  an  ambiguous  one ;  and  its  uncertainty 
runs  into  and  perplexes  the  subject  of  evidence,  so  that 
the  student  of  that  subject  needs  to  reflect  carefully  on 
these  ambiguities,  to  perceive  the  bearing  of  them,  and 
to  have  a  clear  mind  about  two  or  three  familiar  ques- 
tions relating  to  the  burden  of  proof,  and  two  or  three  fal- 
lacies about  it  which  are  constantly  presenting  themselves 
in  the  proper  region  of  evidence.  He  would  do  a  great 
service  to  our  law  who  should  thoroughly  discriminate,  and 
set  forth  the  whole  legal  doctrine  of  the  burden  of  proof. 
No  such  attempt  is  now  to  be  made.  Such  a  discussion 
would  have  to  take  a  wide  range,  for  the  subject  belongs  to 
UTiiversal  jurisprudence,  and  not  merely  to  the  law  of  one 
people  or  one  age ;  and  the  phrase  and  the  things  it  stands 
for  have  a  long  descent.  The  leading  maxims  about  it  (often 
ill  understood)  have  come  from  the  Roman  Law.  During 
the  Dark  Ages  and  among  our  Germanic  ancestors  it  had 
a  different  and  peculiar  application.  It  was  then  the  privi- 
lege of  proof.^  With  the  use  of  the  jury  came  a  new  set 
of  ideas  and  a  new  system  of  pleading,  very  different  from 
those  of  Rome  and  modern  continental  Europe ;  and  gradu- 
ally, with  the  slow  and  strange  development  of  the  jury 
system,  and  the  irregular  working  out  of  common-law  plead- 
ing, there  has  come  into  prominence  a  new  set  of  discrimina- 
tions. Much  that  in  other  times  and  countries  was  not  the 
subject  of  judicial  discussion,  and  remained  hidden  among 
the  unrecorded  details  of  forensic  usage,  now,  through  the 
working  of  our  double  tribunal  of  judge  and  jury,  and 
the  constant  necessity  of  marking  their  respective  bounda- 
ries, and  of  reviewing,  in  a  higher  court,  not  merely  the 
instructions  given  by  the  trial  judge  to  the  jury,  but  the 
whole  conduct  of  the  trial, —  comes  out  into  the  region  of 
judicial  rules  and  precedents. 

Witliout  undertaking  to  make  any  direct  exposition  of 

'  Sc(!  Von  I5:ir's  /ifn'cixini/irll,  jiiissim  ;  Laufllilin,  Lcc;(il  Procedure,  in 
"  KHsays  on  Aii{,'l<j-Saxou  Law  ;  "  aud  Bi^^elow,  Hist,  rroccdure  iu  Eng- 
laud,  c.  viii. 


THE   BURDEN   OF   PROOF.  355 

this  subject,  let  me  now  deal  with  two  or  three  of  those  in- 
cidental matters  alluded  to  above,  as  being  specially  impor- 
tant for  the  student  of  the  law  of  evidence  to  consider. 

I.  In  legal  discussion,  this  phrase,  "the  burden  of 
proof,"  is  used  in  several  ways.  It  marks,  (1)  The  pecu- 
liar duty  of  him  who  has  the  risk  of  any  given  proposition 
on  which  parties  are  at  issue,  —  who  will  lose  the  case  if 
he  does  not  make  this  proposition  out,  when  all  has  been 
said  and  done.  In  saying  "the  peculiar  duty,"  I  mean  to 
discriminate  this  duty  from  another  one,  called  by  the 
same  name,  which  this  party  shares  with  his  adversary. 
(2)  It  stands  for  the  duty  last  referred  to,  when  dis- 
criminated from  the  other  one;  that  is  to  say,  the  duty 
of  going  forward  in  argument  or  in  producing  evidence; 
whether  at  the  beginning  of  a  case  or  at  any  later  moment 
throughout  the  trial  or  the  discussion.  (3)  There  is  an 
undiscriminated  use  of  the  phrase,  perhaps  more  common 
than  either  of  the  otlier  two,  in  which  it  ma,j  mean  either 
or  both  of  the  others. 

(1)  As  to  the  first  sense  of  the  term,  expressing  the 
duty  of  the  actor,  i.  e.,  the  party  having  the  affirmative  of 
the  issue,  to  establish  the  proposition  at  the  end  of  the 
case,  this  is  an  ancient,  wide,  and  approved  use.  It  is  the 
sense  to  which,  since  the  year  ]832,i  the  Supreme  Court  of 
Massachusetts  has  sought,  with  great  anxiety,  to  limit  the 
expression.  («)  In  1854^  it  was  put  thus:  "The  burden 
of  proof  and  the  weight  of  evidence  are  two  very  different 
things.  The  former  reinains  on  the  party  affirming  a  fact 
in  support  of  his  case,  and  does  not  change  in  any  aspect 
of  the  cause;  the  latter  shifts  from  side  to  side  in  the 
progress  of  a  trial,  according  to  the  nature  and  strength 
of  the  proofs  offered  in  support  or  denial  of  the  main  fact 
to  be  established.  In  the  case  at  bar,  the  averment  which 
the  plaintiff  was  bound  to  maintain  was  that  the  defend- 
ant was  legally  liable  for  the  payment  of  tolls.     In  answer 

1  Powers  V.  Russell,  13  Pick.  69. 

2  Central  Bridge  Co.  v.  Butler,  2  Gray,  130. 


356  LAW   OF   EVIDENCE. 

to  this  the  defendant  did  not  aver  any  new  and  distinct 
fact,  such  as  payment,  accord  and  satisfaction,  or  release; 
but  offered  evidence  to  rebut  this  alleged  legal  liability. 
By  so  doing  he  did  not  assume  the  burden  of  proof,  which 
still  rested  on  the  plaintiff;  but  only  sought  to  rebut  the 
prima  facie  case  which  the  plaintiff  had  proved."  (U)  In 
1883 1  the  Master  of  the  Rolls  (Brett)  said:  "It  is  con- 
tended (I  think  fallaciously)  that  if  the  plaintiff  has  given 
prima  facie  evidence  which,  unless  it  be  answered,  will 
entitle  him  to  have  the  question  decided  in  his  favor,  the 
burden  of  proof  is  shifted  on  to  the  defendant  as  to  the 
decision  of  the  question  itself.  This  contention  appears 
to  be  the  real  ground  of  the  decision  in  the  Queen's  Bench 
Division.  I  cannot  assent  to  it.  It  seems  to  me  that  the 
proposition  ought  to  be  stated  thus :  the  plaintiff  may  give 
p'ima/r/cie  evidence  which,  unless  it  be  answered,  either 
by  contradictory  evidence  or  by  the  evidence  of  additional 
facts,  ought  to  lead  the  jury  to  find  the  question  in  his 
favor:  the  defendant  may  give  evidence,  either  by  con- 
tradicting the  plaintiff's  evidence  or  by  proving  other 
facts;  the  jury  have  to  consider,  upon  the  evidence  given 
upon  both  sides,  whether  they  are  satisfied  in  favor  of  the 
plaintiff'  with  respect  to  the  question  which  he  calls  upon 
them  to  answer.  .  .  .  Then  comes  the  difficulty  —  suppose 
that  the  jury,  after  considering  the  evidence,  are  left  in 
real  doubt  as  to  which  way  they  are  to  answer  the  question 
put  to  them  on  behalf  of  the  plaintiff;  in  that  case  also 
the  burden  of  proof  lies  upon  the  plaintiff,  and  if  the 
defendant  has  been  able,  by  the  additional  facts  which  he 
has  adduced  to  bring  the  minds  of  the  whole  jury  to  a 
real  state  of  doubt,  the  plaintiff  has  failed  to  satisfy 
the  burden  of  proof  which  lies  upon  him."^  (c)  In  New 
York,^  Chiircli,  C.  J.,  for  the  court,  expresses  himself  thus: 

1   Ahrath  v.  N.  E.  Ry.  Co.,  11  Q.  B.  D.  440. 

'^  Coriip.ire  tlic  cliargo  to  the  jury  in  Com.  r.  Choate,  105  Mass.  451,456, 
and  tlio  lanpjnaf^o  of  the  court  in  sustaining  it,  //).  459. 
8  Caldwell  V.  New  Jersey  Co.,  47  N.  Y.  282,  290. 


THE   BURDEN   OF  PROOF.  357 

"The  burden  of  maintaining  the  affirmative  of  the  issue, 
and.  properly  speaking,  the  burden  of  proof,  remained 
upon  the  pLiintiff  throughout  the  trial;  but  the  burden  or 
necessity  was  cast  upon  the  defendant,  to  relieve  itself 
from  the  presumption  of  negligence  raised  by  the  plain- 
tiff's evidence."  (d)  In  the  following  passage  may  be 
seen  a  recognition  of  two  meanings  of  the  term.  In  1878,^ 
Lord  Justice  Brett  remarked,  with  valuable  comments  on 
the  case  of  Watson  v.  Clark, ^  that  "The  burden  of  proof 
upon  a  plea  of  unseaworthiness  to  an  action  on  a  policy  of 
marine  insurance  lies  upon  the  defendant,  and  so  far  as 
the  pleadings  go  it  never  shifts.  .  .  .  But  when  facts  are 
given  in  evidence,  it  is  often  said  that  certain  presump- 
tions, which  are  reall}^  inferences  of  fact,  arise  and  cause 
the  burden  of  proof  to  shift;  and  so  they  do  as  a  matter 
of  reasoning,  and  as  a  matter  of  fact."  ^ 

(2)  As  to  the  second  sense  of  the  term,  (ci)  A  clear 
expression  of  it  is  found  in  an  opinion  of  Lord  Jus- 
tice Bowen :  ^  "  In  order  to  make  my  opinion  clear,  I 
should  like  to  say  shortly  how  I  understand  the  term 
*  burden  of  proof.'  In  every  lawsuit  somebody  must  go  on 
with  it;  the  plaintiff  is  the  first  to  begin,  and  if  he  does 
nothing  he  fails.  If  he  makes  a  prima  facie  case,  and 
nothing  is  done  by  the  other  side  to  answer  it,  the  defend- 
ant fails.  The  test,  therefore,  as  to  burden  of  proof  is 
simply  to  consider  which  party  would  be  successful  if  no 
evidence  at  all  was  given,  or  if  no  more  evidence  was 
given  than  is  given  at  this  particular  point  of  the  case; 
because  it  is  obvious  that  during  the  controversy  in  the 
litigation   there   are   points    at   which  the   onus  of  proof 

1  Pickup  V.  Thames  Ins.  Co.,  3  Q.  B.  D.  p.  600. 

2  1  Dow,  .336. 

^  Compare  the  same  judge  in  Anderson  v.  Morice,  L.  R.  10  C.  P.  58 
(1874),  Abrath  v.  No.  East.  Ry.  Co.,  11  Q.  B.  D.  440  (1883),  and  Davey  v. 
Lond.  &  S.  W.  Ry.  Co.,  12  Q.  B.  D.  70. 

4  Abrath  v.  No.  E.  Ry.  Co.,  32  W.  R.  50,  53.  In  the  regular  report 
(11  Q.  B.  D.  440,  455-6)  the  phraseology  is  slightly,  but  not  materially, 
different. 


358  LAW   OF   EVIDENCE. 

shifts,  and  at  which  the  tribunal  must  say,  if  the  case 
stopped  there,  that  it  must  be  decided  in  a  particular 
way.  Such  being  the  test,  it  is  not  a  burden  which  rests 
forever  on  the  person  on  whom  it  is  first  cast,  but  as  soon 
as  he,  in  his  turn,  finds  evidence  which,  prima  facie,  rebuts 
the  evidence  against  which  he  is  contending,  the  burden 
shifts  until  again  there  is  evidence  which  satisfies  the 
demand.  Now,  that  being  so,  the  question  as  to  onus  of 
proof  is  only  a  rule  for  deciding  on  whom  the  obligation 
rests  of  going  further,  if  he  wishes  to  win."  {b)  In  the 
Banbury  Peerage  case,'  in  the  course  of  a  question  relating 
to  the  presumption  of  legitimacy,  the  judges  were  asked 
by  the  House  of  Lords,  "Whether  in  every  case  in  which 
there  is  prima  facie  evidence  of  any  right  existing  in  any 
person  the  onus  j^robandi  be  always,  or  be  not  always,  upon 
the  person  or  party  calling  such  right  in  question  ?  "  They 
answered,  through  Mansfield,  C.  J.,  "That  in  every  case 
in  which  there  is  prima  facie  evidence  of  any  right  exist- 
ing in  any  person,  the  onus  probandi  is  always  upon  the 
person  or  party  calling  such  right  in  question."  (f)  Stephen  ^ 
lays  it  down  that  "  The  burden  of  proof  in  any  proceed- 
ing lies  at  first  on  that  party  against  whom  the  judgment 
of  the  court  would  be  given  if  no  evidence  at  all  were 
produced  on  either  side,  regard  being  had  to  any  presump- 
tion which  may  appear  on  the  pleadings.  As  the  proceed- 
ing goes  on,  the  burden  of  proof  may  be  shifted  from  the 
party  on  whom  it  rested  at  first  by  proving  facts,  which 
raise  a  presumption  in  his  favor.  The  burden  of  proof  as 
to  any  particular  fact  lies  on  that  person  who  wishes  the 
court  to  believe  in  its  existence  .  .  .  ;  but  the  burden 
may  in  the  course  of  a  case  be  slnfted  from  one  side  to  the 
other,"  etc.  (d)  An  English  writer,  Best,  tells  us:'''  "The 
burden  of  proof  is  shifted  by  those  presumptions  of  law 
which   are   rebuttable;    by   presumptions    of   fact    of    the 

1  1  Sim.  &  St.  153. 

'^  Dip.  Evid.  arts.  95  and  96. 

"  Evidence,  8.  273. 


THE   BURDEN   OF   PROOF.  359 

stronger  kind;  and  by  every  species  of  evidence  strong 
enough  to  establish  ^  prima  facie  case  against  a  party." 
(3)  A  few  cases  may  be  added  wliich  illustrate  the 
common  confusion  in  the  use  of  the  expression,  (ri)  A 
doctrine  was  formerly  laid  down  in  England  that  in  prose- 
cutions under  the  game  laws,  the  defendant  had  the  burden 
of  establishing  that  he  was  qualified.  This  really  rested 
in  part  upon  the  construction  of  the  statutes.^  But  a  gen- 
eral principle  came  to  be  laid  down,  that  "  where  the  sub- 
ject-matter of  a  negative  averment  lies  peculiarly  within 
the  knowledge  of  the  other  party,  the  averment  is  taken 
as  true  unless  disproved  by  that  party."  ^  There  is  great 
sense  in  such  a  doctrine  as  indicating  a  duty  of  producing 
evidence,  but  little  or  none  when  it  marks  a  duty  of  estab- 
lishing. But  by  reason  of  the  ambiguity  of  this  phrase, 
the  doctrine  is  afloat  in  both  senses.  That  the  duty  ought 
to  be  limited,  as  a  statement  of  the  common  law,  to  that 
of  giving  evidence,  is  plainly  shown  by  the  remarks  of 
Holroyd,  J. :  "In  every  case  the  onus  lyrohandi  lies  on  the 
person  who  wishes  to  support  his  case  by  a  particular  fact 
which  lies  more  peculiarly  within  his  own  knowledge.  .  .  . 
This  indeed  is  not  allowed  to  supply  the  want  of  necessary 
proof,"  etc.^     (i)  A  striking  instance,   at  once  of  a  com- 

1  The  King  v.  Turner,  5  M.  &  S.  206,  210  (1816):  "  There  are,  I  think, 
about  ten  different  heads  of  qualification  enumerated  in  the  statutes.  .  .  . 
The  argument  really  comes  to  this :  that  there  would  be  a  moral  impossi- 
bility of  ever  convicting  upon  such  an  information."  Per  Lord  Ellen- 
borough.  See  King  v.  Stone,  1  East,  639  (1801),  where  the  court  was 
divided. 

'^  Greenl.  Ev.  i.  s.  73. 

3  King  V.  Burdett,  4  B.  &  Aid.  p.  140  (1820).  See  also  Steph.  Dig.  Ev. 
art.  96  :  "  In  considering  the  amount  of  evidence  necessary  to  shift  tha 
burden  of  proof,  the  court  has  regard  to  the  opportunities  of  knowledge 
with  respect  to  the  fact  to  be  proved  which  may  be  possessed  by  the  parties 
respectively."  Compare  Best,  Ev.  ss.  275,  276.  Bonnier,  Traite  des 
Preuves  (5th  ed),  i.  37  bis:  "  La  difficulte'  de  la  preuve  .  .  .  n'est  point  un 
motif  suffisant  pour  intervertir  les  roles."  And  again,  s.  49  :  "  C'est  tou- 
jours  au  demandeur  k  prouver,  et  qu'il  peut  le  faire,  meme  lorsqu'il  s'agit 
d'un  fait  negatif ;  il  le  pourra  bieu  plus  facilement  si  on  admet  cette  sage 


360  LAW  OF  EVIDENCE. 

mon  English  sense  of  the  term,  and  of  a  confused  way  of 
mixing  it  up  with  another  sense  of  it,  is  found  in  a  recent 
opinion  of  so  great  a  judge  as  Lord  Blackburn.  In  an 
Irish  negligence  case  ^  a  very  interesting  discussion  arose 
as  to  the  relation  between  court  and  jury,  and  the  circum- 
stances under  which  a  judge  can  direct  a  verdict;  inci- 
dentally it  touched  the  burden  of  proof.  Lord  Blackburn, 
who  held  that  a  verdict  should  be  entered  for  the  defend- 
ants, put  his  view  thus:  To  justify  this,  "it  is  not  enough 
that  the  balance  of  testimony  should  be  overwhelmingly 
on  one  side,"  so  that  a  verdict  the  other  way  ought  to  be 
set  aside,  but  "  the  onus  must  be  one  way,  and  no  reason- 
able evidence  to  rebut  it."  By  "onus"  and  "onus  of 
proof"  Lord  Blackburn  does  not  mean  the  duty  of  ulti- 
mately establishing  a  proposition;  but  his  use  of  the  term 
is  so  connected  with  that  meaning,  and  with  an  older 
doctrine  of  pleading  whereby  the  general  issue  did  not 
necessarily  mean  a  negative  case,  that  it  will  be  instructive 
to  quote  his  words :  "  It  is  of  great  importance  to  see  on 
whom  the  onus  of  proof  lies,  for  if  the  state  of  the  case  is 
such  that  on  the  admissions  on  the  record,  and  the  undis- 
puted facts  given  in  evidence  on  the  trial,  the  onus  lies  on 
either   side,  the  judge  ought  to  give  the  direction,  first, 

restriction  que,  pour  rendre  la  nc'gative  definie,  il  est  permis  d'obliger  la 
partie  adverse  a  preciser  ses  pretentious."  The  sound  common-law  doc- 
trine, together  with  a  reference  to  statutes  that  change  it,  is  found  in  Wil- 
son V.  Melvin,  13  Gray,  73,  and  Com.  v.  Lahy,  8  Gray,  459.  The  question 
arising  under  the  English  Game  Laws  was  afterwards  regulated  by  statute. 
(1  'I'ayl.  Ev.  9th  ed.  s.  377,  note  )  Such  statutes,  exempting  one  party  from 
tlio  duty  of  giving  evidence  in  certain  cases,  or  imposing  the  "  burden  of 
proof"  on  the  otlier,  are  common  enough  both  here  and  in  England. 
Thoy  might  easily  give  rise  to  questions  of  construction  as  to  the  meaning 
of  the  yihrase  now  under  discussion.  In  dealing  witli  one  of  these  statutes 
(which  had  not,  however,  used  the  very  pliraso),  it  was  said  by  the  court 
in  Mnglor  v.  Kansas,  123  IT.  S.  p.  674,  that  it  sirnjdy  detorniiiiod  what  was 
a,  prhitd  facie,  case  for  tlic  government.  C()m])are  Peters,  C.  J.,  in  Buswell 
V.  Fuller,  80  Me.  fiOO. 

1  Dublin,  etc.  Ky.  Co.  (-.  Slattery,  3  App.  Cas.  11.5.'),  1201,  1202,  1203, 
1208. 


THE   BURDEN   OF   PROOF.  361 

that  if  there  are  no  additional  facts  to  alter  this,  the  jury 
ought  to  find  against  that  party  on  whom  the  onus  now 
lies."  "I  think  the  recent  decision  of  your  Lordship's 
House  in  Metropolitan  Railway  Company  v.  Jackson 
conclusively  establishes  this  doctrine  in  cases  in  which 
the  onus  was,  on  the  issue,  as  joined  on  the  record,  on  the 
party  against  whom  the  verdict  was  directed.  I  am  of 
opinion  that  it  is  equally  so  when  a  fact  found,  or  undis- 
puted at  the  trial,  has  shifted  that  onus."  "The  cases  in 
which  the  principle  that  the  onus  may  shift  from  time  to 
time  has  been  most  frequently  applied,  are  those  of  bills 
of  exchange.  At  the  beginning  of  a  trial  under  the  old 
system  of  pleading  [i.  e.,  on  the  general  issue]  .  .  .  the 
onus  was  on  the  plaintiff  to  prove  that  he  was  holder,  and 
that  the  defendant  signed  the  bill.  If  he  proved  that, 
the  onus  was  on  the  defendant;  for  the  bill  imports  con- 
sidera.tion.  If  the  defendant  proved  that  the  bill  was 
stolen,  or  that  there  was  fraud,  the  onus  was  shifted,  and 
the  plaintiff  had  to  prove  that  he  gave  value  for  it.  This 
.  .  .  depends  not  on  the  allegation,  under  the  new  system, 
on  the  record,  that  there  was  fraud,  but  on  the  proof  of  it 
at  the  trial."  "It  was  laid  down  in  Ryder  v.  Wombwell 
that  *  there  is  in  every  case  a  preliminary  question,  which 
is  one  of  law,  namely,  whether  there  is  any  evidence  on 
which  the  jury  could  properly  find  the  question  for  the 
party  on  whom  the  onus  of  proof  lies;  if  there  is  not,  the 
judge  ought  to  withdraw  the  question  from  the  jury,  and 
direct  a  nonsuit  if  the  onus  is  on  the  plaintiff,  or  direct  a 
verdict  for  the  plaintiff  if  the  onus  is  on  the  defendant,' 
and  this  was  approved  of  and  adopted  in  this  House  in  the 
recent  case  of  Metropolitan  Railway  Company  v.  Jackson. 
I  have  already  given  my  reasons  for  thinking  that  the 
expression,  '  the  party  on  whom  the  onus  of  proof  lies,' 
must  mean,  not  the  party  on  whom  it  lay  at  the  begin- 
ning of  the  trial,  but  the  party  on  whom,  on  the  un- 
disputed facts,  it  lay  at  the  time  the  direction  was 
given." 


362  LAW   OF   EVIDENCE. 

(c)  Baron  Parke's  statement  in  Barry  v.  Butlin '  is  well 
known:  "The  strict  meaning  of  the  term  onus prohandl  is 
this,  that  if  no  evidence  is  given  by  the  party  on  whom 
the  burden  is  cast,  the  issue  mast  be  found  against  him." 
This  might  seem  to  point  to  the  duty  of  establishing. 
Does  it  ?  It  describes  only  the  duty  of  one  (whoever  he 
may  be)  having  the  onus  probandi  (whatever  that  may  be) 
to  produce  evidence.  Kow,  as  we  have  seen,  a  common 
and  approved  English  conception  is  that  when  a  party 
does  have  this  and  makes  a  prima  facie  case,  the  other 
party  has  the  onus  probandi ;  so  that  then  Baron  Parke's 
remark  will  apply  to  him.^  Baron  Parke's  expression 
appears  to  be  consistent  with  either  view,  since  the  duty 
of  beginning  and  that  of  finally  establishing  may,  and 
may  not,  rest  upon  different  persons ;  ^  the  duty  of  begin- 
ning may  be  settled  by  a  rule  of  presumption  or  a  rule  of 
practice  that  has  nothing  to  do  with  the  duty  of  establish- 
ing, (d)  In  a  Connecticut  case  *  the  defendant  was  prose- 
cuted under  a  statute,  for  neglecting  and  refusing  to 
support  his  wife.  At  the  trial,  under  the  general  issue, 
he  set  up  her  adultery.  The  jury  were  charged  that  he 
had  the  burden  of  proof  to  establish  the  adultery  beyond 
a  reasonable  doubt;  and  a  verdict  for  the  State  was  set 
aside,  and  a  new  trial  granted  for  misdirection.  It  was 
laid  down  by  the  court  (Andrews,  C.  J.)  that  the  burden 
of  proof  is  on  the  government  to  prove  its  case  in  all  its 
parts;  that  the  issue  is  but  one,  the  defendant's  guilt,  and 
that  whenever  a  defence  is  so  proved  that  a  reasonable 
doubt  is  caused  as  to  any  part  of  the  case,  the  jury  should 
acquit.     But   it  was  also  said:  "If   the   defendant  relies 

1  2  Moore,  P.  C.  484  ;  s.  c.  1  Curtois,  p.  640 ;  ami  so  Mctcalf,  J.,  in 
6  Cush.  p.  319. 

2  Sucli  is  Harnii  Tarko's  own  uso  of  tlie  term  in  Elkin  ?-.  Jauson,  13  M. 
&  W.  pp.  002-3,  and  T.oril  Ilalsbnry's  and  Lord  Watson'.s  in  Wakelin  i'. 
London,  etc.  Ky.  Co.,  12  App.  Cas.  41  ;  wlicrc  also  Lord  Hlacklmrn,  having 
read  Lord  Watson's  o])inion,  remarks  :  "  In  it  I  ])crfoctly  ai^roe."  See  also 
Stephen,  Dif,'.  Ev.  arts.  9.'')  and  90,  and  L.  J.  l?owen,  supra,  3.57. 

8  Sec  infra,  Sll.  ■*  State  v.  Schweitzer,  57  Conu.  532  (1889). 


THE  BURDEN   OF   PRQOF,  363 

upon  some  distinct  substantive  ground  of  defence  not 
necessarily  connected  with  the  transaction,  ...  as  insan- 
ity or  self-defence,  or  an  alibi,  or,  as  in  the  case  at  bar, 
the  adultery  of  the  wife,  he  must  prove  it  as  an  independ- 
ent fact.  ...  It  is  incumbent  upon  the  defendant  to 
establish  the  fact.  .  .  .  All  authorities  agree  that  the 
burden  is  upon  the  State  to  make  out  its  accusation  .  .  . 
beyond  all  reasonable  doubt.  .  .  .  When  a  defendant 
desires  to  set  up  a  distinct  defence,  ...  he  must  bring  it 
to  the  attention  of  the  court;  in  other  words,  he  must 
prove  it,  .  .  .  that  is,  he  must  produce  more  evidence  in 
support  of  it  than  there  is  against  it.  When  he  has  done 
this  by  a  preponderance  of  the  evidence,  the  defence 
becomes  a  fact  in  the  case  of  which  the  jury  must  take 
notice  .  .  .  and  dispose  of  it  according  to  the  rule  before 
stated,  that  the  burden  is  upon  the  State  to  prove  every 
part  of  the  case  against  the  prisoner  beyond  a  reasonable 
doubt."  ^  It  is,  perhaps,  not  clear  what  is  meant  here.  The 
court  avoids  saying  in  terms  that  the  defendant  has  any 
"burden  of  proof,"  but  they  seem  to  say  it  in  substance. 
If  the  defendant  must  establish  the  insanity  or  alibi  by 
the  preponderance  of  the  evidence,  he  has  the  burden  of 
proving  it.  It  would  seem  that  the  true  theory  of  this 
case  is  that  the  defence  has  nothing  to  "prove,"  but 
has  only  to  do  what  the  Massachusetts  court  intimated 
in  one  of  the  cases  relied  on  in  this  opinion,  when  it  said: 
"  The  evidence  which  tended  to  prove  the  alibi,  even  if  it 
failed  to  establish  it,  was  left  to  have  its  full  effect  in 
bringing  into  doubt  the  evidence  tending  to  prove  the 
defendant's  presence    at  the   fire."^     So   here,   defendant 

1  For  tliis  exposition  the  court  cites,  among  other  cases,  Brotherton  v. 
The  People,  75  N.  Y.  159,  and  the  charge  in  Com.  v.  Choate,  105  Mass. 
451 ;  and  they  remark  that  this  last  charge  was  "  held  to  be  correct." 
This  is  misleading.  The  Massachusetts  court  held,  in  effect,  that  the 
charge  was  inconsistent  and  in  part  bad  ;  but  that  it  contained  its  own 
antidote,  and  therefore  the  verdict  might  stand. 

~  Com.  V.  Choate,  uhi  supra  ;  People  r.  Riordan,  117  N.  Y.  71  ;  State  v. 
Ardoin,49  La.  1145;  State  v.  Howell,  100  Mo.  628;  People  v.  Bushton,  80 


364  LAW   OF   EVIDENCE. 

Deed  not  establish  the  adultery;  he  need  only  bring  the 
jury  to  a  reasonable  doubt  about  it;  for,  according  to  the 
theory  of  the  case,  that  is  a  reasonable  doubt  of  the  defend- 
ant's guilt.  It  "becomes  a  fact  in  the  case,"  when  there 
is  a  reasonable  doubt  of  it.^ 

II.  So  much  for  the  various  meanings  of  the  phrase. 
And  now  some  explanations  as  to  the  relation  of  the  sub- 
ject to  pleading. 

(1)  It  is  important  to  attend  to  one  or  two  peculiarities 
of  the  Roman  law ;  for  that  body  of  law  has  given  us  the 
term  onus  2^>'obandl  and  a  variety  of  maxims  about  it. 
Under  the  system  which  prevailed  in  classical  times,  and 
for  two  or  three  centuries  after  the  Christian  Era,  — a 
period  which  includes  the  great  jurists  whose  responses 
are  preserved  in  the  "Digest," — the  Prsetor  sent  to  the 
judex  a  formula  containing  a  brief  indication  of  the  plain- 
tiff's claim,  of  the  aiSrmative  defence,  if  any,  of  the  affir- 
mative replication,  if  any,  and  so  on,  —  with  instructions 
to  hear  the  parties  and  their  witnesses,  and  then  decide 
the  case.  No  denials  were  mentioned  in  the  formula,  but 
each  affirmative  case  was  understood  to  be  denied.  Then 
followed  a  trial  of  each  of  these  cases  separately,  —  first, 
the  plaintiff's;  then,  unless  that  failed,  the  defendant's; 
and  then,  unless  that  failed,  the  plaintiff's  replication;  and 
so  on.  What,  in  our  system,  is  a  plea  in  confession  and 
avoidance,  was,  in  the  Roman  system,  merely  a  supposi- 
tion of  the  trutli  of  tlie  opposite  case,  and  an  avoidance 
of  it;  nothing  was  admitted.  As  illustrating  this,  I  give, 
in  a  note,  some  passages  from  a  clear  account  of  a  pro- 
cedure thouglit  to  have  "differed  but  slightly  in  principle" 
from  that  of  tlio  ])eriod  to  wliifih  I  now  refer. - 

Cal.  IGO.  "  It  is  n  jirisoiior's  hurdoii,  the  only  bnrdoii  ever  put  upon  him 
hy  the  law,  that  of  satisfyinj;;  the  jury  tliat  there  is  a  reasonalile  (hmbt  of 
his  guilt."     K.  II.  Dana,  (m/nendo,  York's  case,  9  Met.  p.  98. 

'  See  the  (^lear  statenionts  in  State  v.  Crawford,  1 1  Kans.  p.  44-5  (1873), 
and  in  Scott  r.  Wood,  HI  Cal.  ^^W  (1889).  Compare  Wilder  r.  Cowles,  100 
Mass.  487. 

'■^  LMn<;;(|cll,  K(|uily   l'I(  adini;  (2d  cd.),  ss.  4-14.     " Thcrc  were   ...  as 


THE  BURDEN  OF  PROOF.  365 

Now,  under  such  a  method,  where  there  is  presented  at 
each  stage  of  the  trial  only  one  clear  and  unchangeable 
affirmation  and  denial,  the  phrase  onus  jjrobandl  (and  so 
the  leading  Latin  maxims  about  it)  may  have  a  very  simple 
meaning.  The  proof,  the  burden  of  proving,  belongs  to 
the  actor ;  it  cannot  shift,  and  cannot  belong  to  tlie  reus, 
whose  function  is  not  that  of  proving,  but  the  purely 
negative  one  of  repelling  or  baffling  the  adversary's 
attempts  to  prove.  ■^  Consistently  with  this,  however,  it 
may  be  the  duty  of  the  defendant  upon  any  particular 
point  to  go  forward  with  evidence;  because  there  may  be 
some  presumption  which  operates  as  a  prima  facie  case  on 
that  point,  in  favor  of  the  party  who  has  the  affirmative 
on  the  general  proposition  of  the  issue,  and  which,  with- 
out the  production  of  evidence,  accomplishes  the  result  of 
evidence.     In  calling  this  duty  of  him  who  has  the  nega- 

many  stages  iu  the  trial  as  there  were  pleadings.  The  first  stage  consisted 
of  the  trial  of  the  plaintiff's  case  as  stated  in  the  libel.  For  this  purpose 
the  plaintiff  would  first  put  iu  his  evidence  in  support  of  his  case,  and  tlie 
defendant  would  then  put  in  his  evidence,  if  he  had  any,  in  contradiction. 
The  evidence  bearing  upon  the  libel  being  exhausted,  the  next  stage  was 
the  trial  of  the  exception,  wliich  proceeded  in  the  same  manner  as  the 
trial  of  the  libel,  except  that  the  defendant  began,  he  liaving  the  burden  of 
proof  as  to  his  exception.  In  this  manner  the  trial  proceeded,  until  all 
the  evidence  bearing  upon  each  of  the  pleas  in  succession  was  exhausted, 
each  party  being  required  in  turn  to  prove  his  own  pleading,  if  he  would 
avail  himself  of  it  (s.  8).  .  .  .  Finally  it  will  be  found  that  all  the  essential 
differences  between  a  trial  at  common  law  and  by  the  civil  law,  arise 
from  this,  namely,  that  by  the  common  law  a  cause  goes  to  trial  with 
everything  alleged  in  the  pleadings  on  either  side  admitted,  except  the 
single  point  upon  which  issue  is  joined,  while  by  the  civil  law  it  goes  to 
trial  with  nothing  admitted"  (s.  12).  This  system  has  largely  survived 
on  the  continent  of  Europe,  in  Scotland,  and  in  our  equity  and  admiralty 
procedure. 

1  This  is  equally  plain  in  any  simple  case  under  our  system,  such  as 
Hingeston  v.  Kelly,  18  L.  J.  n.  s.  Ex.  360,  and  Phipps  v.  Mahon,  141  Mass. 
471,  a  like  instance,  where  the  thing  is  well  expounded.  But  in  our  sys- 
tem the  court's  revision  of  the  proceedings  before  the  jury  is  constantly 
introducing  into  judicial  discussion  questions  and  speculations  as  to  what  is 
called  "  the  Inirden  of  proof,"  which,  at  Rome,  did  not  thus  come  out  into 
the  light  to  perplex  the  simplicity  of  the  subject. 


366  LAW  OF   EVIDENCE. 

tive  by  the  name  of  yrohatio  and  onus  probandi,  there  is  in 
Latin  the  same  ambiguity  which  we  have  in  English. 

The  situation  is  thus  indicated  by  the  language  of 
a  learned  Dutch  writer,^  whose  statement  I  regret  to  have 
only  in  another's  translation:  "The  rule  concerning  the 
onus  of  proof,  as  to  its  object,  suffers  derogation,  when, 
instead  of  establishing  the  principal  and  decisive  fact  in 
the  cause,  one  or  other  of  the  parties  is  permitted  to  refer 
to  other  facts  from  which  may  be  deduced  the  truth  of  that 
which  it  is  sought  to  prove;  in  other  terms,  when  the 
allegations  of  one  of  the  parties  are  sustained  by  a  legal 
presumption.  In  such  case  the  relative  liositions,  with 
respect  to  the  onus  of  proof,  are  not  transposed ;  there  is  a 
change  only  as  to  the  object  of  proof."  And,  in  a  note, 
the  author  adds:  "This  is  why  the  language  ...  of  the 
Dutch  Code,  '  legal  presumption  dispenses  with  all  other 
proof,'  is  more  exact  than  that  ...  of  the  Erench  Code, 
'legal  presumption  dispenses  with  all  proof.' "^ 

(2)  But  the  form  of  the  pleadings  may  not  help  to  de- 
termine the  duty  of  the  parties ;  for  there  may  not  be  any 
pleadings.  It  is  possible  to  conduct  legal  controversies, 
as  well  as  others,  without  any  written  or  recorded  plead- 
ings, or  in  disregard  of  them.     It  is  often  done;  the  con- 

1  Goudsinidt,  Pandccis  (Gould's  trauslation),  317. 

2  Compare  the  language  of  an  anouymous  medieval  treatise  preserved 
in  the  Black  Book  of  the  Admiralty,  supposed  to  be  written  by  some  civil- 
ian of  the  school  of  Bologna,  at  about  the  end  of  the  fourteenth  century. 
"  Si  neget  reus,  incumbit  j)robacio.  .  .  .  Debet  enim  actor  vel  accusator, 
qui  aliquid  asseverat,  probare,  non  autem  reus  qui  negat ;  quia  per  rerum 
naturam,  id  est  causarum  consuetudineui,  inductum  est  ut  attirmantis,  non 
autem  negantis,  ali(jua  sit  probacio ;  nam  judices  in  causis  cousueverunt 
iinponere  onus  ])rol)andi  actori  asseveranti,  non  autem  neganti.  Hoc  tamen 
veruin  est,  quod  aliquando  neganti  incumbit  probacio,  ut  puta  quando  pre- 
sumj)cio  est  pro  actore,  dicto  enim  ali(|ucm  fuisse  sanac  mentis  quando 
t(;statur,  quoil  tu  negas,  soil  tpiia  quilibet  ])rcsumitur  sanae  mentis  nisi  pro- 
hetur  ctjiitrarium,  tibi  neganti  incumliit  ])robacio  ;  et  ita  presunqicio  con- 
vertit  ali(iuando  onus  probandi  in  ncgantem,  set  non  omnis  prcsumpcio. 
(jiiia  rpii  cumplex  est  |)r(!Sumpcio  ;  de(|uil)iis,  proso(|ni  longum  esset.  .  .  ." 
"  Tlio  text  liere,"  remarks  the  editor,  "  is  hoi)elessly  corrupt." 


THE   BURDEN   OF   PROOF.  367 

venient  practice  of  agreeing  the  facts,  whether  resting  on 
a  statute  ^  or  on  the  practice  of  the  courts,  will  readily 
come  to  mind;  in  such  case,  although  there  is  no  trial  of 
facts,  the  question  of  law  remains,  and  the  relative  duty 
of  the  parties  as  to  the  issue.  As  regards  everything  fol- 
lowing the  declaration  in  civil  cases,  and  the  indictment 
in  criminal  cases,  we  are  familiar  in  modern  times  with 
that  state  of  things,  —  indeed  the  common  law  has  always 
known  it.-  An  oral  plea  to  an  indictment,  of  not  guilty, 
and  a  written  general  denial  have  been  very  common  an- 
swers, whatever  the  real  nature  of  the  defence  on  sound 
principles  of  pleading.  Not  long  ago  it  was  formally 
recommended  by  a  committee  appointed  by  the  Lord 
Chancellor  and  made  up  of  the  leading  judicial  and  legal 
personages  in  England,  that  litigation  should  thereafter 
be  conducted  in  the  High  Court  of  Justice  without  any 
pleadings.  "The  committee,"  they  said,  "is  of  opinion 
that,  as  a  general  rule,  the  questions  in  controversy 
between  litigants  may  be  ascertained  without  pleadings." 
Then  followed  the  recommendation  of  a  rule  that  "No 
pleadings  shall  be  allowed  unless  by  order  of  a  judge."  ^ 

1  E.  g.,  St.  15  &  16  Vic.  c.  76,  s.  46. 

2  Co.  Lit.  283. 

8  This  interesting  document  may  be  found  in  the  London  Times  for 
Oct.  8,  1881.  It  is  signed  by  Lord  Coleridge,  Lord  Justice  James,  Justices 
Hannen  and  Bowen,  the  Attorney-General  (James),  the  Solicitor-General 
(Herschell),  and  others.  I  will  add  some  passages  of  the  report :  "  In  the 
year  1879  there  were  issued  in  the  divisions  of  the  High  Court  in  London 
writs,  59,  659.  Of  the  actions  thus  commenced,  there  were  settled,  without 
appearance,  15,372,  i.  e..,  25.68  per  cent ;  by  judgment  by  default,  16,967, 
/.  e.,  28  34  per  cent ;  by  judgment  under  Order  XIV.,  4,251,  i.  e.,  7.10  per 
cent;  total  of  practically  undefended  cases,  36,590,  i.  e.,  61.12  per  cent; 
cases  unaccounted  for  and  therefore  presumably  settled  or  abandoned 
after  some  litigation,  20,804,  i.  e.,  35.10  per  cent.  The  remaining  cases 
were  thus  accounted  for  :  Decided  in  court,  —  for  plaintiffs,  1 ,232  ;  for 
defendants,  521  ;  before  masters  and  official  referees,  512  ;  total,  2,265; 
that  is,  3.78  per  cent  of  the  actions  lirought.  From  these  figures  it  seemed 
clear  that  the  writ  in  its  present  form  was  effective  in  bringing  defendants 
to  a  settlement  at  a  small  cost,  and  that  it  was  unadvisable  to  make  any 
alteration  by  uniting  it  with  a  plaint  or  other  statement  of  the  plaintiff's 


368  LAW  OF   EVIDENCE. 

The  substitute  for  pleadings  which  these  propositions 
contemplated  was  a  brief  indorsement  u})on  a  writ  of  sum- 
mons, indicating  the  nature  of  the  plaintiff's  claim,  and  a 
brief  notice  from  the  defendant  of  any  special  defence, 
such  as  the  Statute  of  Limitations  or  payment.  Although 
these  suggestions  were  not  in  form  adopted,  yet  English 
common-law  pleading  has  come  down  to  a  very  simple 
basis  indeed;  and  so,  very  widely,   in  this  country. 

Whether  there  be  pleadings  or  not,  and  whether  they 
be  simple  or  not,  you  come  out,  at  some  stage  of  the  con- 
troversy, upon  a  proposition,  or  more  than  one,  expressed 
or  implied,  on  which  the  parties  are  at  issue,  one  party 
asserting  and  the  other  denying.  An  admission  may,  of 
course,  end  the  controversy;  but  such  an  admission  may 
be,  and  yet  not  end  it;  and  if  that  be  so,  it  is  because  the 
party  making  the  admission  sets  up  something  that  avoids 

cause  of  action,  which  would  add  to  the  expense  of  the  first  step  in  the 
litigation.  .  .  .  The  committee  is  of  opinion  the  questions  in  controversy 
between  litigants  may  be  ascertained  without  pleadings.  In  the  20,804 
cases  which,  as  appeared  from  the  statistics  of  1879,  were  either  settled  or 
abandoned  without  being  taken  into  court,  it  may  reasonably  be  supposed 
that  pleadings  were  of  little  use.  Of  the  cases  which  go  to  trial  it  appears 
to  the  committee  that  in  a  very  large  number  the  only  questions  are  : 
Was  the  defendant  guilty  of  the  tortious  act  charged,  and  what  ought  he 
to  pay  for  it?  or  Did  the  defendant  enter  into  the  alleged  contract,  and 
was  it  broken  by  him?  And  in  a  great  many  others  the  pleadings  present 
classes  of  claims  and  defences  which  follow  common  forms.  We  may  take, 
for  instance,  the  disputes  arising  out  of  mercantile  contracts  for  sale,  of 
affreiglitment,  of  insurance,  of  agency,  of  guarantee.  The  cases  of  litigants 
are  usually  put  forward  in  the  same  shape,  the  plaintiff  relying  on  the 
contract  and  complaining  of  breaches;  the  defendant,  on  the  other  hand, 
denying  the  contract  or  the  breaches,  or  contending  that  his  liability  on 
the  contract  has  terminated.  Tlie  questions  in  dispute  are,  as  a  general 
rule,  well  known  to  tlie  ])]aintiff  and  the  defenihiiit.  It  is  only  when  their 
controversies  have  to  be  reproduced  in  technical  forms  that  diiliculties 
begin."     See  4  Ilarv.  Law  l{ov.  pp.  184-18.5. 

Compare  Mk^  pi(i\  isiiiiis  of  St.  43  Eliz.  c.  12  (1601),  for  the  relief  of 
merchants  in  lln'  m.-iitcr  of  insurance.  Commissioners  were  to  hear  the 
parties  "  in  a  briif  .-md  siinimary  cour.se  .  .  .  witliout  formalities  of 
pleadings  or  proc(;('diiigs." 


THE  BURDEN  OF  PROOF.  369 

the  apparent  effect  of  it;  as  subsequent  payment  avoids 
the  effect  of  what  shows  a  claim  in  contract.  When  this 
happens,  the  party  defending  becomes,  in  so  far,  tlie  actor 
or  plaintiff.  In  general,  he  who  seeks  to  move  a  court  in 
his  favor,  whether  as  an  origiiial  plaintiff  whose  facts  are 
merely  denied,  or  as  a  defendant,  who,  in  admitting  his 
adversary's  contention  and  setting  up  an  affirmative  de- 
fence, takes  the  role  of  actor  (reus  excipiendo  fit  actor),  — 
must  satisfy  the  court  of  the  truth  and  adequ.acy  of  the 
grounds  of  his  claim,  both  in  point  of  fact  and  law.^  But 
he,  in  every  case,  who  is  the  true  reus  or  defendant  holds, 
of  course,  a  very  different  place  in  the  procedure.  He 
simply  awaits  the  action  of  his  adversary,  and  it  is  enough 
if  he  repel  him.  He  has  no  duty  of  satisfying  the  court; 
it  may  be  doubtful,  indeed  extremely  doubtful,  whether 
he  be  not  legally  in  the  wi'ong  and  his  adversary  legally 
in  the  right;  indeed  he  may  probably  be  in  the  wrong,  and 
yet  he  may  gain  and  his  adversary  lose,  simply  because 
the  inertia  of  the  court  has  not  been  overcome;  because 
the  actor  has  not  carried  his  case  beyond  an  equilibrium  of 
proof,  or  beyond  all  reasonable  doubt. ^  Whatever  the 
standard  be,  it  is  always  the  actor  and  never  the  reus  who 
has  to  bring  his  proof  to  the  required  height;  for,  truly 

1  Bonnier,  Prenves,  i.  s.  .36  (5tli  ed.) :  "  Celui  qui  doit  innover  doit  de- 
montrer  que  sa  pretention  est  fonde'e." 

2  Bracton,  fol.  2.39  b. ;  "  Si  juratores  dubitaverint  .  .  .  querens  per  hoc 
nihil  consequitur  .  .  .  quia  <|Uotienscunque  dubitatur  an  quid  sit,  perinde 
est  ac  si  non  esset  illud."  I  have  spoken  of  "  the  inertia  of  the  court."  Of 
course,  from  the  court's  point  of  view  this  question  presents  itself.  What 
shall  we  do  when  we  know  not  what  to  do  ?  This  has  sometimes  been  an- 
swered with  much  simplicity.  Bonnier,  Prenves,  i.  s.  51  (5th  ed.),  remarks : 
"  Nos  anciens  auteurs,  de  leur  cote,  ont  propose  divers  expedients  pour 
resoudre  les  questions  douteuses.  Les  uns  venlent  qu'on  tranche  le  diffe- 
rend  par  la  moitie,  ce  que  Cujas  appelle  avec  raisou  nnile  judicium.  D'autres 
proposent  I'emploi  du  sort,  emploi  qui  a  ete  realise  effectivenient  en  1644 
(bins  la  fameuse  sentence  des  huchettes."  He  adds  in  a  note :  "  Par  un  juge 
de  Melle  qui  avait  fait  tirer  aux  plaideurs  deux  pailles  on  burJiettes,  qu'il 
tenait  entre  les  doigts.  Heureu«emeiit  pour  I'honueur  de  la  justice,  elle  a 
ete  re'formee  par  le  parlement  de  Paris." 

24 


370  LAW  OF  EVIDENCE. 

speaking,  it  is  only  the  actor  that  has  the  duty  of  proving 
at  alh  Whoever  has  that  duty  does  not  make  out  a  prima 
facie  case  till  he  comes  up  to  the  requirement,  as  regards 
quantity  of  evidence  or  force  of  conviction,  which  applies 
to  his  contention ;  and,  of  course,  he  has  not,  at  the  end 
of  the  debate,  accomplished  his  task  unless  he  has  held 
good  his  case,  and  held  it  at  the  legal  height,  as  against  all 
counter  proof. ^  This  duty,  in  the  nature  of  things,  here 
as  well  as  at  Kome,  cannot  shift;  it  is  always  the  duty  of 
one  party,  and  never  of  the  other.  But  as  the  actor,  if  he 
would  win,  must  begin  by  making  out  a  case,  and  must 
end  by  keeping  it  good,  so  the  reus,  if  he  would  not  lose, 
must  bestir  himself  when  his  adversary  has  once  made  out 
his  case,  and  must  repel  it.  And  then,  again,  the  actor 
may  move  and  restore  his  case,  and  so  on.  This  shifting 
of  the  duty  of  going  forward  with  argument  or  evidence 
may  go  on  through  the  trial.  Of  course,  as  has  been  said 
already,  the  thing  that  thus  shifts  and  changes  is  not  the 
peculiar  duty  of  each  party,  — for  that  remains  peculiar; 
i.  e.,  the  duty,  on  the  one  hand,  of  making  out  and  holding 
good  a  case  which  will  move  the  court,  and,  on  the  other, 
the  purely  negative  duty  of  preventing  this.  It  is  the 
common  and  interchangeable  duty  of  going  forward  with 
argument  or  evidence,  whenever  your  case  requires  it. 

(3)  If  one  asks  how  he  shall  know  who  has  the  duty 
of  establishing,  — the  burden  of  proof  in  that  sense  of  the 
term,  —  he  must  put  this  question  with  reference  to  some 
specific  proposition.  As  a  general  question,  it  relates  to 
the  proposition  on  which  the  parties  are  at  issue;  and  the 
goner.'il  answer  is  that  the  actor  has  it,  the  one  who  holds 
tlie  aflirmative.  Ifow,  tlien,  shall  we  ascertain,  in  any 
given  case,  who  the  actor  is  ?  As  we  have  seen,  the  mere 
form  of  the  pleadings  may  suffice  to  tell  us.  Where  it 
does  not,  we  must  be  referred  to  the  ])rincii)les  of  plead- 

'  It  sliuiilil  lie  rciiiMi-kfil,  liDWcvor,  tliiit-  tlicrc  is  much  frcodiiiii  <if  dis- 
crctioii  ;ill(»w(t(l  t,li(?  t,ri;il  jinl^o  in  (Ictcriiiiiiinf^  wliou  a  pai'ty  may  rest  for 
the  time  being;  aud  wlien  tlie  other  may  fairly  be  called  on  to  explain. 


THE  BURDEN  OF  PROOF.  371 

ing;  and  in  attending  to  these  we  shall  sometimes  find 
ourselves  involved  in  an  analysis  of  the  substantive  law 
of  the  particular  case,  and  perhaps  in  an  inquiry  into 
things  obsolete,  anomalous,  and  forgotten.  "Undoubt- 
edly," says  a  learned  judge,  "  many  matters  which,  if  true, 
would  show  that  the  plaintiff  never  had  a  cause  of  action, 
or  even  that  he  never  had  a  valid  contract,  must  be  pleaded 
and  proved  by  the  defendants;  for  instance,  infancy, 
coverture,  or,  probably,  illegality.  Where  the  line  should 
be  drawn  might  differ  conceivably  in  different  jurisdic- 
tions."^ Clearly  one  has  no  right  to  look  to  the  law  of 
evidence  for  a  solution  of  such  questions  as  these,  and  I 
am  not  proposing  to  answer  them.^ 

1  Per  Holmes,  J.,  in  Starratt  v.  Mullen,  148  Mass.  570. 

2  As  I  have  said  it  would  be  a  great  service  to  the  law,  if  these  mat- 
ters could  be  thoroughly  worked  out.  My  colleague,  Professor  Langdell, 
has  kindly  allowed  me  the  privilege  of  reprinting  here  the  following  pas- 
sages from  a  valuable,  short  treatment  of  this  subject,  incidental  to  his 
well-known  discussion  of  pleading  in  equity.  I  quote  from  his  work  on 
that  subject  (2d  ed.),  ss.  108-114.  It  will  be  observed  that  his  point  of 
view  is  somewhat  different  from  that  taken  in  the  text. 

"  No  reliance  can  be  placed  upon  the  form  of  a  plea,  even  if  correctly 
drawn,  for  the  purpose  of  determining  whether  it  is  affirmative  or  neg- 
ative ;  but  the  question  must  be  decided  in  every  case  upon  principle, 
the  test  being  the  burden  of  proof.  That  is  to  say,  if  the  plea  amounts 
merely  to  a  denial,  direct  or  argumentative,  of  some  fact  wliicli  the  plain- 
tiff must  prove  in  order  to  obtain  relief,  whether  such  fact  be  alleged  in 
the  bill  or  not,  the  plea  will  be  negative  ;  for,  if  the  plea  be  replied  to,  the 
only  fact  to  be  tried  will  be  the  fact  thus  denied,  and  as  to  that  the  plain- 
tiff will  have  the  burden  of  proof.  The  defendant  will  properly  have 
nothing  to  prove  ;  and  if  he  puts  in  any  evidence,  its  object  will  be  merely 
to  show  the  plaintiff's  evidence  to  be  untrue,  o/,  if  true,  inconclusive.  In 
a  word,  the  fact  to  be  tried  constitutes  a  part  of  the  plaintiff's  case.  On 
the  otlier  hand,  if  the  plea  alleges  some  fact  which  is  consistent  with 
every  fact  necessary  to  be  proved  by  the  plaintiff",  but  which,  if  true,  will 
still  prevent  the  plaintiff's  recovering  (and  unless  such  be  its  effect,  the 
plea  will  necessarily  be  bad),  in  that  case  the  plea  will  be  affirmative;  for 
if  it  be  replied  to,  the  only  fact  to  be  tried  will  be  the  fact  alleged  by  the 
plea,  and  as  to  that  the  defendant  will  have  the  burden  of  proof.  The 
plaintiff  will  have  nothing  to  prove,  as  all  the  facts  which  constitute  his 
case  are  admitted  by  the  plea;   and  if  the  court  decides,  upon  all  the 


372  LAW  OF  EVIDENCE. 

It  will,  however,  serve  to  illustrate  the  nature  of  the 
difficulties  which  have  attended  the  attempt  to  determine 

evidence  given,  that  the  fact  alleged  by  the  plea  is  not  proved,  the  plain- 
tiff will  have  a  decree  upon  the  facts  alleged  in  the  bill  and  admitted  by 
the  plea.  In  a  word,,  the  fact  to  be  tried  will  constitute  a  defence  in  the 
proper  sense  of  the  term  '  defence'  (/.  e.,  an  affirmative  defence),  and  not 
a  part  of  the  plaintiff's  case.  The  question,  therefore,  whether  any  par- 
ticular plea  is  affirmative  or  negative,  can  never  be  answered  intelligently 
until  anotiier  question  be  answered  ;  namely,  what  facts  must  the  plaintiff 
prove  in  order  to  obtain  a  decree  ?  The  latter  question  being  answered, 
the  former  involves  no  difficulty. 

"  How,  then,  is  it  to  be  ascertained  wliether  any  particular  fact  must 
be  proved  by  the  plaintiff  to  enable  him  to  recover,  or  whether  the  con- 
trary must  be  proved  by  the  defendant  to  prevent  the  plaintiff's  recov- 
ering ■?  If,  for  example,  in  an  action  upon  a  contract,  there  be  a  question 
whether  tlie  defendant  was  of  full  age  when  he  made  the  contract,  must 
the  plaintiff  prove  that  lie  was,  or  must  the  defendant  prove  that  he  was 
then  an  infant  ?  Or  if,  in  an  action  upon  contract,  it  appear  that  the  de- 
fendant made  the  promise  alleged,  but  do  not  appear  whether  he  received 
a  consideration  for  the  promise,  must  the  plaintiff  prove  a  consideration, 
or  must  the  defendant  prove  that  the  promise  was  gratuitous  1  There  is 
no  doubt  how  these  two  questions  should  be  answered,  namely,  that  in  the 
former  the  burden  of  proof  lies  upon  the  defendant,  while  in  the  latter  it 
lies  upon  the  plaintiff.  But  the  important  inquiry  is,  why  should  these 
two  questions  be  answered  differently  ?  It  is  often  said  that  the  burden 
of  proof  lies  upon  the  party  who  holds  the  affirmative  ;  but,  in  the  two 
cases  just  put,  each  party  has  an  affirmative  in  form,  while  in  substance 
the  plaintiff  has  tlie  affirmative  in  both  cases.  It  is  necessary,  therefore, 
to  find  some  otlior  way  of  distinguisliing  the  two  cases ;  and  that  is  not 
difficult.  Every  contract  must  consist  of  certain  elements  prescribed  by 
law.  These  elements  consist  of  acts  done  by  the  parties  respectively,  and 
done  with  a  certain  intention.  Until  all  of  these  elements  are  proved  to 
exist,  there  is  no  reason  to  suppose  that  there  is  any  contract  between  the 
parties,  and  hence  no  reason  to  suppose  that  the  defendant  is  liable  to  tlio 
plaintiff  uyK)n  contract.  It;  would  be  very  unreasonable,  therefore,  to  re- 
quire any  proof  from  the  defendant  so  long  as  any  of  the  necessary 
elements  of  a  contract  remain  unproved  by  tlie  plaintiff;  and  one  of  these 
elements,  in  the  case  of  a  contract  not  under  seal,  is  the  giving  of  a  con- 
fiideration  by  the  plaintiff  for  the  defendant's  jironiise.  When,  however, 
the  plaintiff  has  j)roved  all  the  acts  retiuired  by  law  for  the  making  of  a 
crmtract,  and  these  acts  have  been  iK'coiiijianied  by  the  usual  indirin  of 
intention  to  contract,  there  is  a  strnn>j  probability  that  the  defendant  is 
bound,  and  it  would  be  very  unreasonable  t,o  re(|uin!  the  ])laintiff  to  go 
farther.     If  any  fact  exists,  in  conseiiuence  of  which  the  defendant  is  not 


THE   BURDEiSf   OF  PROOF.  373 

the  affirmative  in  pleading  by  the  method  of  an  analysis  of 
the  substantive  law,  —  I  need  not  enlarge  on  the  distresses 

bound,  e.y.,  that  he  was  under  twenty-one  years  of  age  when  he  made  the 
promise,  the  defendant  should  clearly  be  required  to  show  it.  Hence,  it  is 
a  rule  that,  in  all  actions  upon  contract,  the  plaintiff  must  prove,  first,  the 
making  of  a  contract  in  fact,  /.  e.,  in  case  of  a  contract  not  under  seal, 
that  the  defendant  promised,  and  that  the  plaintiff  gave  a  consideration 
for  the  jiromise  ;  in  case  of  a  contract  under  seal,  that  the  defendant  sealed 
and  delivered  to  the  plaintiff  a  promise  or  obligation  in  writing.  Secondly, 
if  the  promise  was  upou  a  condition  or  was  not  to  be  performed  until  some 
future  time,  the  plaintiff  must  prove  that  the  condition  has  been  performed 
or  has  happened,  or  that  the  time  for  performance  of  the  promise  has 
arrived.  Nothing  further  need  be  proved  by  the  plaintiff,  unless  expressly 
required  by  the  agreement  of  the  parties  or  by  a  statute  ;  and  having 
proved  so  much,  he  will  recover  unless  the  defendant  establishes  an  affir- 
mative defence.  Such  a  defence  may  show  that,  although  the  defendant 
made  the  promise  alleged  for  the  consideration  alleged,  yet  there  never 
was  in  law  any  contract,  e.  g.,  that  the  defendant  was  a  married  woman 
when  she  made  the  promise,  or  that  the  promise  was  declared  void  by 
statute  for  illegality ;  or  it  may  sliow  that,  although  there  is  a  contract, 
yet  the  defendant  is  not  bound  by  it  (which  is  commonly  expressed  by 
saying  that  the  contract,  though  not  void,  is  voidable),  e.  g.,  that  the  prom- 
ise or  the  consideration  for  it  was  illegal,  or  that  the  promise  was  ob- 
tained by  fraud  or  duress,  or  that  the  defendant  was  an  infant  when  he 
made  the  promise ;  or  it  may  show  that,  although  a  valid  contract  was 
made,  yet  the  plaintiff  never  had  a  right  of  action  on  it,  as  it  was  duly 
performed,  or  was  rescinded  before  breach,  or  was  terminated  by  the  hap- 
pening of  a  condition  subsequent ;  or  it  may  show  that,  although  the 
plaintiff  once  had  a  right  of  action,  such  right  has  been  extinguished 
(e.  g.,  l)y  a  release  or  by  an  accord  and  satisfaction),  or  that  the  defendant 
is  protected  by  statute  from  being  sued  upon  it,  e.  (/.,  by  the  Statute  of 
Limitations  or  by  a  statutory  discharge  in  bankruptcy. 

"  A  contract  may  provide  that  one  of  the  parties  thereto  shall  not  be 
liable  for  a  breach  of  his  promise  or  covenant,  except  upon  the  perform- 
ance of  some  condition  by  the  other  party ;  or  a  statute  may  provide  that 
no  action  shall  lie  upon  a  contract,  or  even  that  the  contract  shall  be  void, 
unless  some  condition  specified  by  the  statute  shall  be  complied  with ;  but 
in  neither  of  these  cases  will  the  plaintiff  be  required  to  prove  compliance 
■with  such  condition  (it  being  no  part  of  the  covenant  or  promise  sued  on), 
unless  it  clearly  appear  that  such  was  the  intention  of  the  parties  to  the 
contract  in  the  one  case,  or  of  the  legislature  in  the  other.  On  the  con- 
trary, the  defendant  will  be  required  to  show  non-compliance  with  the 
condition  in  question  as  an  affirmative  defence.  .  .  . 

"  There  has  been  much  difference  of  opinion  upon  the  question  whether 


374  LAW   OF   EVIDENCE. 

incident  to  the  obscure  effect  of  forgotten  rules  and  prac- 
tices, —  to  look  at  one  or  two  cases  relative  to  negotiable 
paper. 

In  a  Massachusetts  case,  in  speaking  of  want  of  con- 
sideration in  a  promissory  note,  the  court  says :  i  "  With- 

the  plaintiff,  in  cases  which  come  within  the  Statute  of  Frauds,  has  the 
burden  of  proving  that  the  statute  has  been  complied  with.  It  was  formerly 
held,  both  by  courts  of  law  and  courts  of  equity,  that  he  had,  though  courts 
of  law  committed  the  extraordinary  inconsistency  of  holding  that  he  need 
not  allege  compliance  with  the  statute  in  his  declaration ;  and  this  incon- 
sistency was  unfortunately  not  cured  by  the  Hilary  Rules.  But,  if  what 
has  been  stated  is  correct,  it  follows  that  it  is  no  part  of  the  plaintiff's  case 
to  show  that  the  statute  has  been  complied  with,  but  that  the  defendant 
must  show  the  contrary  as  an  affirmative  defence,  if  he  would  avail  himself 
of  the  statute ;  and  such  is  now  the  rule  in  England  under  the  Judicature 
Acts.  It  should  be  borne  in  mind  also  that  this  view  is  independent  of  the 
question,  whether  the  statute  renders  the  contract  void,  in  case  of  non-com- 
pliance with  its  provisions,  or  merely  disables  the  plaintiff  from  suing  on  it. 

"  What  has  been  said  of  actions  upon  contracts  is  also  true  of  actions 
upon  torts,  mutatis  mutandis,  i.  e.,  the  plaintiff  must  show  that  the  defend- 
ant has  committed  an  act  which,  in  the  absence  of  any  excuse  or  justifica- 
tion, constitutes  in  law  a  tort  to  the  plaintiff ;  and  he  need  show  nothing 
more.  If  any  facts  existed  which  rendered  the  defendant's  act  justifiable 
or  even  excusable,  although  such  facts  show  that  the  defendant  has  in 
truth  committed  no  tort,  yet  they  constitute  an  affirmative  defence,  and 
hence  must  be  alleged  and  proved  by  the  defendant. 

"  It  will  have  been  seen  that,  in  actions  upon  contract  or  upon  tort,  the 
plaintiff  has  the  burden  of  proving  only  that  he  once  had  a  cause  of  action 
against  the  defendant, —not  that  it  continued  to  exist  when  he  brought 
his  action  ;  and  that  the  defendant  always  lias  the  burden  of  proving  that 
a  cause  of  action,  which  once  existed,  exists  no  longer.  The  reason  is  that 
a  cause  of  action  does  not  die  a  natural  deatli ;  once  created,  it  continues 
to  exist  until  some  event  happens  which  has  the  power  and  the  effect  of 
destroying  it.  Hence,  when  a  cause  of  action  is  proved  once  to  have  existed, 
the  court  mu.«t  treat  it  as  still  existing,  until  the  contrary  appears.  De  non 
nppnrpntihus  ft  non  eristentihus  eadem  est  ratio." 

The  di.scnssion  of  the  same  question  as  relating  to  actions  for  the  re- 
covery of  property  and  the  defence  of  the  Statute  of  Limitations  con- 
tained in  ?■/).,  fis.  11 4-]  29,  may  well  be  examined.  See  also  McKyring  v. 
Bull,  16  N.  Y.  207;  I'omeroy,  Remedies,  c.  4  ;  The  Glendarroch  [1894], 
Proh.  226,  per  Lord  Esher,  M.  R. 

J  Per  Thomas,  J.,  in  Crowniiishiold  v.  Crowninshield,  2  Gray,  524,  531  ; 
and  80  Delano  v.  Bartlctt,  6  Cush.  304. 


THE   BURDEN   OF   PROOF,  375 

out  a  consideration  there  is  no  contract.  The  question, 
therefore,  whether  there  was  a  consideration,  is  but  a  form 
of  the  question  whether  a  contract  was  ever  made.  The 
burden  does  not  shift.  The  production  of  the  note,  with 
the  signature  of  the  defendant,  makes  a  prima  facie  case 
against  him;  and  when  no  evidence  is  offered  to  the  con- 
trary, the  plaintiff  will  of  course  prevail.  But  when 
evidence  is  offered  by  the  defendant,  and,  it  may  be,  by 
the  plaintiff,  it  all  applies  to  one  and  the  same  issue,  — 
was  there  a  consideration  ?  If  not,  there  was  no  contract. 
And  the  burden  remains  throughout  upon  him  who  affirms 
that  a  contract  was  made." 

These  statements  are  probably  founded  in  error.  Com- 
pare the  account  of  the  same  matter  by  Lord  Blackburn, 
which  is  partly  given  on  a  previous  page.^  The  document 
"imports  consideration,"  it  is  said;  which  means  that  a 
consideration,  in  such  cases,  in  the  regular  course  of 
things,  is  not  necessary;  or,  in  other  words,  as  it  is 
expressed  by  a  learned  writer,  "tlie  modern  mercantile 
specialty  "  is  brought  under  the  doctrine  applicable  to  the 
older  specialty,  namely,  the  rule,  as  cited  from  an  old  case, 
that  whereas,  "in  debt  upon  a  contract,  the  plaintiff  shall 
show  in  his  count  for  what  consideration  (cause)  the 
defendant  became  his  debtor,  [it  is]  otherwise  in  debt  upon 
a  specialty  (obligation),  for  the  specialty  is  the  contract 
itself." 2 

1  Supra,  361  ;  Dublin,  etc.  Ry.  Co.  v.  Slattery,  3  App.  Cas.  115,5,  1203. 

2  Ames,  Specialty  Contracts  and  Equitable  Defences,  9  Harv.  Law 
Rev.  49.  See  also  the  clear  assimilation  of  these  classes  of  documents  hv 
one  of  the  judges  of  the  Supreme  Court  of  Massachusetts,  Mr.  Justice 
Holmes,  in  some  very  trenchant  allusions  to  the  famous  case  of  Master  v. 
Miller,  4  T.  R.  320.  He  is  first  speaking  of  the  ordinary  specialty  :  "  The 
contract  was  inseparable  from  the  parchment.  If  a  stranger  destroyed  it, 
or  tore  off  the  seal,  or  altered  it,  the  obligee  could  not  recover,  however 
free  from  fault,  because  the  defendant's  contract,  that  is,  the  actual  tan- 
gible bond  which  he  had  sealed,  could  not  be  produced  in  the  form  in 
which  it  bound  him.  About  a  hundred  years  ago  Lord  Kenyon  undertook 
to  use  his  reason  on  this  tradition,  as  he  sometimes  did,  to  the  detriment 
of  the  law,  and,  not  understanding  it,  said  he  could  see  no  reason  why 


376  LAW   OF   EVIDENCE. 

In  dealing  with  such  questions  it  has  to  be  remembered, 
sometimes,  as  I  am  reminded  by  a  learned  friend,  that  de- 
fences with  which  we  are  familiar,  and  which  seem,  upon 
analysis,  to  be  a  negation  of  what  is  affirmed  by  an  adver- 
sary, are  really  positions  which  were  formerly  not  allowed 
to  be  taken  at  all  in  a  legal  controversy.  The  long  history 
of  equitable  defences,  such  as  fraud,  and  even  illegality 
and  failure  of  consideration,  has  to  be  borne  in  mind;  ^  and 
then  it  is  easy  to  see  why  such  matters  are  proper  to  be 
alleged  and  established  by  him  who  has  been  newly  allowed 
the  privilege  of  availing  himself  of  them. 

But  as  time  passes  and  the  conceptions  on  which  legal 
obligation  is  determined  come,  from  age  to  age,  to  rest  on 
a  new  analysis,  it  would  seem  that  the  test  of  an  affirmative 
case  must  also  change  and  be  made  to  depend  more  com- 
monly than  it  does  now,  and  more  distinctly,  on  the  newly 
accepted  ideas  and  analysis.  Now,  and  at  all  times,  the 
tests  of  justice  and  practical  convenience  are  legitimate 
ones,  wherever  the  question  is  open  to  debate. 

III.  Let  us  look,  now,  at  certain  ambiguities  and 
sources   of  ambiguity. 

(a)  At  the  outset,  he  who  has  to  move  the  court  and 
establish  his  case,  has  also  to  go  forward  with  the  proof 
of  it,  unless  some  presumption  or  matter  judicially  noticed, 
operating  like  matters  already  proved,  happen  to  relieve 
him  just  at  this  point;  the  other  party  may  rest  until  then, 
and  will  win  without  a  stroke  if  the  first  remain  idle. 
This  duty  of  beginning  is  often  given  as  the  distinctive 
test  of  an  affirmative  case,  —  "  Which  party  would  be  suc- 

wliiit  was  tnio  of  a  hoiid  should  not  ho  tnio  of  otlicr  contracts.  His  deci- 
sion liajipr-ncil  to  1)0  riijlit,  as  it  concerned  a  protnissory  note,  where  again 
tlio  coninion  law  rcj^arded  the  contract  as  inseparable  from  the  paper  on 
wliiih  it  was  written ;  but  the  reasoning  was  general,  and  soon  was  ex- 
IoikUmI  to  other  written  contracts;  and  various  absurd  and  unreal  grounds 
of  policy  were  invented  to  account  for  the  enlarged  rule."  "  The  Path  of 
the  Law,"  10  Ilarv.  Law  Rev.  472,  47.3. 

^  See  Ames,  9  Ilarv.  Law  Rev.  49-.'J!) ;  and  compare  6  ih.  344-347,  and 
infra,  40.'). 


THE   BURDEN   OF   PROOF.  377 

cessful  if  no  evidence  at  all  were  given."  ^  But  when  the 
actor  has  gone  forward  and  made  his  prim,a  facie  case,  he 
has  brought  a  pressure  to  bear  upon  the  reus,  which  will 
compel  him  to  come  forward;  and  he  again  may  bring 
pressure  upon  tlie  actor  that  will  call  him  out.  This  duty 
of  going  forward  in  response  to  the  call  of  a  prima  facie 
case,  or  of  a  natural  or  legal  presumption,  —  a  duty 
belonging  to  either  party,  —  is,  in  its  nature,  the  same  as 
that  which  rests  upon  the  beginning  party,  and  which  is 
put  as  the  distinctive  test  of  an  actor  ;  it  is  merely  a  duty 
of  going  forward.  This  fact  was  perceived ;  and  it  led  to 
a  modification  in  the  expression  of  the  test.  "As,  how- 
ever," says  Best,^  "the  question  of  the  burden  of  proof 
may  present  itself  at  any  moment  during  a  trial,  the  test 
ought,  in  strict  accuracy,  to  be  expressed  thus,  namely: 
Which  party  would  be  successful  if  no  evidence  at  all,  or 
no  more  evidence,  as  the  case  may  be,  were  given  ?  "  Now 
when  this  has  been  said  and  accepted,  all  notion  of  a 
characteristic  that  is  determined  by  the  beginning  of  the 
case  is  thrown  away;  and  so  every  circumstance  that 
discriminates  the  actor  and  the  reus.  We  are  told  that  we 
may  know  him  who  has  the  burden  of  proof  by  considering 
whether,  at  any  given  moment,  a  party  would  lose  if  the 
case  stopped  then  and  there.  But  that  test  may  apply  to 
either  party,  for  it  points  to  a  situation  in  which  either  may 
find  himself,  namely,  that  of  having  the  duty  of  going  for- 
ward. ■  In  short,  the  test  for  the  never  changing  burden  of 
establishing  the  proposition  in  issue,  has  become  good  only 
for  the  constantly  changing  burden  of  producing  evidence. 
This  last  duty  now  comes  prominently  forward,  and  the 

1  Amos  V.  Hughes,  I  Moo.  &  Rob.  464.  The  right  to  begin  may  be 
fixed  by  a  mere  rule  of  practice.  See,  e.  (j.,  in  Massachusetts,  "  the  well- 
settled  rule  of  this  court  that  the  plaintiff  is  to  open  and  close  in  all  cases, 
without  regard  to  the  burden  of  proof,  or  to  any  admission  of  all  the  facts 
necessary  to  be  proved  by  the  plaintiff  in  opening  liis  case."  Page  v. 
Osgood,  2  Gray,  260. 

2  Evid.  s.  268  ;  and  so  Bowen,  L.  J.,  in  Abrath  v.  N.  E.  Ry.  Co.,  1 1  Q, 
B.  D.  440. 


378  LAW   OF   EVIDENCE. 

other  is  lost  sight  of.  Meantime,  the  change  is  unobserved. 
And,  as  we  have  but  one  term  for  the  two  ideas,  it  gets 
used,  as  we  have  seen,  now  for  one  and  now  for  the  other; 
and,  again,  in  a  way  which  does  not  discriminate  the  mean- 
ing; and  so  there  is  no  end  of  confusion. 

(b)  There  is  much  ambiguity  in  what  is  said  of  the 
"  sliifting  "  of  the  burden  of  proof.  As  to  this  it  is  vital 
to  keep  quite  apart  tlie  considerations  applicable  to  plead- 
ing, and  those  belonging  to  evidence.  We  see  that  the 
burden  of  going  forward  with  evidence  may  shift  often 
from  side  to  side;  while  the  duty  of  establishing  his 
proposition  is  always  Avith  the  actor,  and  never  shifts. 
As  we  have  only  one  phrase  for  two  ideas  belonging  to 
two  different  subjects,  we  say,  as  it  happens,  that  the 
burden  of  proof  does,  and  does  not  shift.  And  then  still 
another  ambiguity.  The  burden  of  establishing  is  some- 
times called  "the  burden. of  proof  upon  the  record;  "  for  it 
is  assumed  that  the  record  shows  the  full  allegations  of 
the  parties.  But,  in  fact,  in  our  books,  the  record  very 
often  fails  to  do  that;  so  that  when  the  general  issue  is 
pleaded,  the  denying  party  has  often  been  allowed,  in  giv- 
ing his  evidence,  to  set  up  affirmative  defences.  So  far  as 
the  record  shows  us  anything  in  such  a  case,  the  plaintiff 
is  the  actor,  and  the  burden  of  establishing  the  proposition 
of  the  case  is  upon  him.  And  yet,  since  his  adversary 
may  offer  evidence  of  an  affirmative  case,  and  when  he 
does,  becomes  the  actor,  and  so  has,  with  his  affirmation, 
the  burden  of  establishing  it,  tliis  burden  seems  to  have 
shifted,  because  a  new  proposition  has  been  introduced. 
But  the  simple  fact  is,  that  under  this  mode  of  pleading, 
as  compared  with  a  strictly  accurate  mode,  the  time  fixed 
for  setting  up  the  affirmative  case  is  different;  instead  of 
requiring  that  it  be  disclosed  before  tlu^  pleadings  are 
ended,  it  is  allowed  to  be  made  known  during  the  prog- 
ress of  the  trial;  and  the  sense  in  wliich  we  say  that  the 
burden  of  proof  has  shifted  is  that  loose  sense  in  which, 
under  a  strict  rule  of  pleading,  it  might  be  said  to  shift 


THE   BUEDEN   OF  PROOF.  379 

while  the  pleadings  are  going  forward,  — being  first  upon 
the  plaintiff,  "  shifting  "  to  the  defendant  when  he  pleads 
in  confession  and  avoidance,  and  remaining  fixed  at  the 
end  where  the  last  purely  negative  plea  leaves  it.  In  both 
cases  the  burden  of  establishing  "shifts,"  only  because  a 
new  affirmative  case  has  been  disclosed,  which  carries  with 
it  the  duty  of  making  it  out.  In  reality  there  is  no  shift- 
ing at  all,  because  the  issue  is  not  yet  settled.  It  remains 
just  as  true  as  ever,  as  regards  the  issue  that  the  burden 
of  establishing  it  never  shifts;  it  is  always  upon  the  actor. 
It  is,  therefore,  merely  a  careless  mode  of  expression,  — 
when  new  issues  are  allowed  to  be  developed  at  the  trial, 
—  to  say  that  the  burden  of  establishing  shifts  during  the 
trial.  And  yet  we  find  that  Chief  Justice  Shaw,  in  the 
very  act  of  starting  the  peculiar  practice,  which  after- 
wards existed  in  Massachusetts,  of  limiting  the  meaning 
of  the  term  "burden  of  proof"  to  the  one  meaning  of  the 
adores  duty  of  establishing  his  proposition,  expresses  him- 
self thus :  "  Where  the  party  having  the  burden  of  proof 
gives  competent  and  prima  facie  evidence  of  a  fact,  and 
the  adverse  party,  instead  of  producing  proof  which  would 
go  to  negative  the  same  proposition  of  fact,  proposes  to 
show  another  and  a  distinct  proposition  which  avoids  the 
effect  of  it,  there  the  burden  of  proof  shifts,  and  rests 
upon  the  party  proposing  to  show  the  latter  fact."^  In 
Massachusetts,  they  now  say  that  "the  burden  of  proof 
never  shifts."  ^ 

1  Powers  r.  Russell,  13  Pick.  69,  77  (1832). 

2  As  in  142  Mass.  p.  360.  But  what  Chief  Justice  Shaw  meant,  may 
still  be  true,  even  under  the  existing  practice  in  Massachusetts,  for  after 
the  answer  there  need  be  no  replication,  wiiile  anything  may  be  proved  by 
the  plaintiff  at  that  stage.  By  the  St.  1836,  c.  273,  special  pleas  in  bar  in 
Massachusetts  were  abolished  in  all  civil  actions,  and  the  general  issue 
substituted.  This  had  been  the  law  as  to  certain  sorts  of  action  before. 
Of  the  condition  of  the  law  as  it  stood  after  this  change  Mr.  B.  R.  Curtis, 
afterwards  Mr.  Justice  Curtis,  said  (Report  of  Commissioners  on  the  Mas- 
sachusetts Practice  Act,  Hall,  139;  also  in  2  Life  of  Curtis,  149,  151)  : 
"  He  who  now  surveys  what  remains,  sees  every  plaintiff  left  to  inhabit 


380  LAW  OF  EVIDENCE. 

(c)  Another  source  of  ambiguity  lies  in  the  relation 
between  the  burden  of  proof,  and  legal  presumptions  or 
rules  of  presumption.  What  is  true  of  these  phrases  in 
one  sense  may  not  be  true  in  another.  When  it  is  said 
that  the  burden  of  establishing  lies  upon  the  actor,  this 
refers,  as  we  see,  to  the  total  proposition  or  series  of 
propositions  which  constitute  his  disputed  case.  As  when 
in  an  action  for  malicious  prosecution  ^  the  Master  of  the 
Rolls  said:  "The  burden  of  proof  of  satisfying  a  jury 
that  there  was  a  want  of  reasonable  care  lies  upon  the 
plaintiff,  because  the  proof  of  that  ...  is  a  necessary 
part  of  the  larger  question,  of  which  the  burden  of  proof 
lies  upon  him."  Suppose,  then,  that  it  be  settled  in  any 
case,  upon  the  principles,  whatever  they  be,  which  govern 
the  question,  that  the  burden  of  establishing  a  given  issue 
is  upon  A,  and  that  upon  some  detail  of  this  issue  a  rule 
of  presumption  makes  in  favor  of  A,  e.  g.,  that  he  has  to 
establish  a  will,  and  that  the  presumption  of  sanity  helps 
him  as  to  this  one  element  of  his  proposition;  ^  or  that  he 
has  to  establish  the  heirship  of  a  child,  including  its  birth 
of  certain  parents,  in  wedlock,  and  legitimately,  and  that 
the  presumption  applying  in  such  cases  helps  him  as  to 
the  last  point; — on  the  supposition,  I  say,  that  in  any 
given  case  the  burden  of  establishing  is  thus  fixed,  and 
that  the  presumption  thus  operates  as  touching  a  part  only 
of  the  total  proposition,  how  does  this  effect  the  duty  of 
the  actor?  Of  course  it  does  not  reach  the  burden  on  the 
whole  issue;  for  this  covers  not  only  the  presumed  tiling, 

the  old  Idiilding,  while  all  others  are  turned  out  of  doors."  The  "Prac- 
tice Act  "  of  18.')1,  prepared  by  these  Coiiiniissioners,  abolished  the  gen- 
eral issue  in  all  imt  real  and  mixed  actions  and  substituted  a  stricter 
8_v.stem.  But  this  strictness  was  in  part  done  away  the  next  year,  when 
the  first  I'ractice  Act  was  repealed,  and  a  new  one  enacted.  Under  this 
one,  now  in  force,  no  pleadings  are  recjuired  after  the  defendant's  answer 
(compare!  St.  1851,  c.  233,  s.  28,  with  St.  1852,  c.  312,  s.  19);  and  the  old 
looseness  still  exists  from  this  point  on. 

1  Abralh  r.  'Ihe  N.  K.  My.  Co.,  11  Q.  B.  1).  p.  451. 

2  Sutl(;ii  /•.  S;iill(T,  3  (".  H.  N.  s.  87.     Compare  infra,  382  n. 


THE  BURDEN  OF  PROOF.  381 

but  more.  Does  it  then  transfer  to  the  other  the  duty  of 
establishing  a  part  of  the  issue  ?  If  so,  we  may  easily 
suppose  a  variety  of  presumptions  operating  in  the  same 
case  which  would  split  up  the  issue  in  a  manner  utterly 
confusing  to  judge  and  jury.  What  happens  in  such  a  case 
seems  rather  to  be  what  the  Romans  called  levamen  i^ro- 
hationis ;  i.e.,  the  presumption  has  done  the  office,  as 
regards  a  particular  fact,  oi prima  facie  proof;  so  that  the 
actor  need  not  in  the  first  instance  go  forward  as  to  this 
matter;  his  case  for  all  purposes  of  beginning  is  proved 
by  this,  witliout  evidence,  just  as  it  would  have  been  by 
evidence  enough  to  make  a  lirima  facie  case.  Of  course  he 
must  still  meet  the  defendant's  counter  proof,  and  must 
make  good  his  total  proposition  not  merely  at  the  begin- 
ning but  at  the  end  of  the  trial ;  for  "  the  relative  positions 
as  to  the  onus  of  proof  are  not  transposed."  ^ 

Such  is  the  import  of  a  well-known  case,  where,  in  an 
action  of  ejectment  by  an  heir-at-law  against  a  devisee,  the 
court  held  it  a  misdirection  to  instruct  the  jury  that  while 
the  heir-at-law  was  entitled  to  recover  unless  the  will  was 
proved,  yet  when  the  execution  of  the  will  was  proved  the 
law  presumed  sanity,  and,  therefore,  the  burden  of  proof 
shifted  and  the  devisee  must  prevail  unless  the  heir-at-law 
established  the  incompetency  of  the  testator;  and,  if  the 
evidence  made  it  a  measuring  cast  and  left  them  in  doubt, 
they  ought  to  find  for  the  defendant.  The  court  held,  on 
the  contrary,  that  while  the  presumption  of  sanity  freed 
the  defendant  from  the  need  of  proof  in  the  first  instance, 
it  did  not  relieve  him  of  the  fixed,  unshiftiug  burden  of 
making  out  his  case  of  a  valid  will.  In  this  case  the  court 
(Cresswell,  J.)  seemed  to  think  that  something  turned  on 
the  question  whether  the  presumption  of  sanity  be  a  pre- 
sumption of  law  or  of  fact;  and  laid  it  down  that  it  must  be 
regarded,  if  not  as  a  presumption  of  fact,  "  at  the  utmost 
as  a  presumption  of  law  and  fact."  That  inquiry  would 
seem  to  have  been  an  irrelevant  one.     There  is  no  rule  of 

1  Goudsraidt,  supra,  366. 


382  LAW  OF  EVIDENCE. 

legal  reasoning  which  is  more  commonly  called  a  presump- 
tion of  law  than  that  which,  p?'i/>ia  facie,  attributes  sanity 
to  huinan  beings.  That  it  is  a  rule  of  presumption,  and  a 
legal  rule,  there  is  no  doubt.  The  important  question  in 
any  particular  instance  is  what  is  the  effect  and  operation 
of  the  rule,  not  what  its  name  is.  And  in  the  case  under 
consideration  the  result  is  that  where  the  case  is  an  affirma- 
tive one,  the  effect  of  tliis  legal  rule  of  presumption,  bear- 
ing only  on  a  part  of  the  actor'' s  case,  is  that  of  making 
out  a  prima  facie  case  on  his  part,  and  not,  necessarily, 
that  of  shifting  or  otherwise  affecting  the  burden  of  estab- 
lishing this  part  of  the  case.^  To  the  same  effect  is  the 
clear  exposition  in  a  recent  opinion  of  the  Supreme  Court 
of  the  United  States,  in  a  criminal  case,  overruling  the 
doctrine  laid  down  by  the  Circuit  Court.  I  give  this  pas- 
sage in  a  note.^ 

1  Sutton  V.  Sadler,  3  C.  B.  n.  s.  87  ;  and  so  Symes  v.  Green,  1  Sw.  &  Tr. 
401.  So  Baxter  v.  Abbot,  7  Gray,  71  (1856),  where  a  decision  on  an 
appeal  from  a  decree  of  a  court  of  probate  allowing  a  will,  sustained  the 
ruling  (p.  74)  that  "  the  burden  of  proof  was  on  the  appellee  to  show  to 
their  [the  jury's]  reasonable  satisfaction  that  the  testator  was  of  sound 
mind  when  he  executed  the  instrument  in  question ;  that  the  legal  pre- 
sumption, in  the  absence  of  evidence  to  the  contrary,  was  in  favor  of  the 
testator's  sanity,  and  that  the  appellee  was  entitled  to  the  benefit  of  this 
presumption,  in  sustaining  the  burden  of  proof  wliicli  the  law  put  upon 
him."  "  We  all  agree  [p.  83]  that  it  ['  the  legal  presumption  ']  does  not 
change  the  burden  of  proof,  and  that  this  always  rests  upon  those  seeking 
the  probate  of  the  will."  The  same  general  principle  is  neatly  applied 
in  an  insurance  case  by  Peters,  C.  J.,  in  Jones  v.  Gran.  St.  Ins.  Co.,  90 
Me.  40. 

2  Davis  V.  U.  S.,  160  U.  S.  469,  48,5-487  (189.')),  jwr  Ilarhui,  J.  "  Upon 
whom  then  must  the  burden  of  proving  that  tlie  accused,  whose  life  it  is 
souglit  to  take  under  tlie  forms  of  law,  belongs  to  a  class  capable  of  com- 
mitting crime  ?  On  principle  it  mn.st  rest  upon  those  who  aflirm  that  he 
lias  coinmitted  the  crime  for  which  ho  is  indicted.  That  burden  is  not 
fully  iliscliargcd,  ii<ir  is  there  any  legal  right  to  take  the  life  of  the  ac- 
cu.scd,  until  guilt  is  made  to  appear  from  all  the  evidence  in  the  case. 
The  ])lea  of  not  guilty  is  unlike  a  .^poci.il  plea  in  a  civil  action,  which,  ad- 
mitting the  ca.><e  averred,  seeks  to  establish  substantive  ground  of  defence 
by  a  preponderance  of  cviilcMcc  It  is  not  !n  confession  and  avoidance, 
for  it  is  a  plea  that  c(jiiLroverts  the  existence  of  every  fact  essential  to  con- 


THE   BURDEN   OF  PROOF.  383 

It  is  true,  then,  that  presumptions  "  shiit  the  burden  of 
proof,"  in  a  familiar  sense  of  that  phrase,  importing  the 
duty  of  going  forward  in  the  argument,  or  in  tlie  giving 
of  evidence.  That  is  the  only  sense  of  the  "burden  of 
proof,"  in  which,  having  once  been  iixed,  it  can  ever 
shift.  In  this  sense  presumptions  may,  of  course,  relieve, 
at   the  outset,   him  who  Juis  the  duty  of  establishing  the 

stitute  the  crime  charged.  Upou  that  plea  the  accused  may  staud,  shielded 
by  the  presuniptiou  of  his  iunoceuce,  imtil  it  appears  that  he  is  guilty ;  and 
his  guilt  cannot  in  the  very  nature  of  things  be  regarded  as  proved,  if  the 
jury  entertain  a  reasonable  doubt  from  all  the  evidence  whether  he  was 
legally  capable  of  committing  crime.  This  view  is  not  at  all  inconsistent 
with  the  presumption  which  the  law,  justified  by  the  general  experience 
of  mankind  as  well  as  by  considerations  of  public  safety,  indulges  iu  favor 
of  sanity.  If  that  presumption  were  not  indulged  the  government  would 
always  be  under  the  necessity  of  adducing  affirmative  evidence  of  the 
sanity  of  an  accused.  But  a  requirement  of  that  character  would  seri- 
ously delay  and  embarrass  the  enforcement  of  the  laws  against  crime,  and 
in  most  cases  be  unnecessary.  Consequently  the  law  presumes  that  every 
one  charged  with  crime  is  sane,  and  thus  supplies  in  the  first  instance  the 
required  proof  of  capacity  to  commit  crime.  It  authorizes  the  jury  to  as- 
sume at  the  outset  that  the  accused  is  criminally  responsible  for  his  acts. 
.  .  .  To  hold  that  such  presumption  must  absolutely  control  the  jury  until 
it  is  overthrown  or  impaired  by  evidence  sufficient  to  establish  the  fact  of 
insanity  beyond  all  reasonable  doubt  or  to  the  reasonable  satisfaction  of 
the  jury,  is  in  effect  to  require  him  to  establish  his  innocence,  by  proving 
that  he  is  not  guilty  of  the  crime  charged." 

And  so  Brothertou  v.  The  People,  7.5  N.  Y.  159  (1878,  Church,  C.  J.), 
and  People  v.  Garbutt,  17  Mich.  9  (1868,  Cooley,  C.  J.);  Dacey  v.  The 
People,  116  111.  555  ;  and  a  great  number  of  criminal  cases  in  this  country 
holding  the  like ;  to  the  effect  that  the  burden  of  establishing  sanity  in 
an  indictment  for  murder  is  upon  the  government,  that  the  presumption 
of  sanity  puts  upon  the  defendant  the  burden  of  going  forward  with  evi- 
dence upon  this  question,  but  does  not  affect  the  duty  of  ultimately  sus- 
taining sanity  ;  a  fact,  which,  upon  the  theory  of  these  cases,  is  none 
the  less  a  part  of  the  government's  case  because  it  is  impliedly  and  not  in 
terms  alleged.  This  doctrine  was  adopted  in  Massachusetts  as  regards  the 
defence  of  idiocy,  an  original  absence  of  natural  capacity,  in  Com.  v.  Heath, 
11  Gray,  303,  (1858) ;  and  by  Chief  Justice  Gray  and  Morton,  J.,  as  to  in- 
sanity in  general,  in  Com.  i\  Pomeroy  (Wharton,  Homicide  (2d  ed.). 
Appendix,  753,  754,  756) ;  and  it  is  now  the  law  in  that  State.  See,  e.  g., 
the  charge  of  the  jury  in  the  case  of  Com.  v.  Tref  ethen  in  the  Boston  Daily 
Advertiser  for  May  5,  1892. 


384  LAW   OF   EVIDENCE. 

issue;  for  both  sides,  they  are,  always,  levamen  prohationis. 
In  the  region  of  the  law  of  evidence  this  appears  to  be 
their  characteristic  function,   indeed  their  only  one. 

As  regards  their  effect  on  the  duty  of  establishing,  it  is 
not  my  purpose,  as  I  have  already  said,  to  attempt  to  lay 
down  the  rules  for  ascertaining  who  has  that  duty. 
Undoubtedly  it  is  not  the  effect  of  all  rules  of  presump- 
tion to  fix  this,  even  though  they  be  called  presumptions  of 
law.i  If  they  do  have  this  effect,  it  is  not  because  they 
are  presumptions,  but  because  they  are  rules  of  law  of  a 
certain  kind.  For  example,  the  doctrine  which  prima 
facie  imputes  legitimacy  to  persons  born  in  wedlock,  and 
requires  a  great  force  of  reason  to  overcome  this  conclu- 
sion, seems  to  import  that  under  all  circumstances  it  shall 
be  adhered  to  unless  the  contrary  is  established;  the  two 
situations  might  have  been  absolutely  identified;  but  the 
rule  stops  short  of  that.  On  the  other  hand,  the  rule 
which  prima  facie  imputes  sanity  to  human  beings,  seems 
only  to  import  the  necessity  of  making  this  matter  fairly 
disputable,  of  making  it  a  question  in.  the  case.  What 
the  effect  is  in  any  particular  rule  of  presumption,  de- 
pends on  the  true  analysis  and  meaning  of  the  rule.  The 
maxim  stahltur  presumptioni  donee  prohetur  in  contrarium 
must  not  be  assumed  to  mean  that  you  are  to  stand  to  a 
presumption  until  the  contrary  is  established.  That  may 
be  true  in  particular  instances.  But  this  maxim  has  in 
it  the  old  ambiguity  as  to  probatio  and  probare  ;  its  only 
universal  meaning  is  that  you  are  to  stand  to  the  presiimp- 
tion  until  there  be  argument  or  evidence  to  the  contrary. 

IV.  I  will  venture  now  to  add  a  few  suggestions  as  to 
a  proper  terminology  for  the  conceptions  indicated  by  the 
"burden  of  proof."  It  seems  impossible  to  approve  a  con- 
tinuance of  the  present  state  of  things,  under  which  such 
different  ideas,  of  great  ])ractical  importance  and  of  fre- 
quent application,  are  indicated  by  this  single  ambiguous 

1  Monocliins,  I'rws.  lib.  i.  (|u.  .■53  ;  cuiii])arc  Best,  Ev.  ss.  273,  319,  321, 
«!</)ra,  3'5'J,  381. 


THE   BURDEN  OF   PROOF.  385 

expression.  What  can  be  done  ?  Of  courses  that  are 
theoretically  possible  there  are  three :  to  abandon  the  use 
of  this  phrase  and  choose  other  terms ;  to  fix  upon  it  only 
one  of  the  two  meanings  now  in  use,  and  find  another 
phrase  for  the  other;  or  letting  it  stand  as  a  confessedly 
indeterminate  phrase,  often  explained  by  the  context,  and 
often  good  enough  for  the  purpose  in  hand,  to  use  other 
phrases  whenever  it  is  necessary  to  be  exact.  As  to  the 
first  course,  it  would  be  an  idle  dream  to  imagine  that  the 
phrase  could  be  wholly  banished  from  legal  usage.  We 
might  as  reasonably  expect  to  exclude  it  from  the  com- 
mon speech  of  men.     Use  it  we  must. 

It  remains  only  to  choose  in  what  sense  it  shall  be  used. 
Or  shall  we  say  here  also,  that  it  is  hoj^eless  to  make  a 
change  ?  It  cannot  be  hopeless.  A  change  is  simply 
necessary  to  accurate  legal  speech  and  sound  legal  reason- 
ing; and  we  may  justly  expect  those  who  have  exact 
thoughts,  and  wish  to  express  them  with  precision,  to 
avail  themselves  of  some  discrimination  in  terminology 
which  will  secure  their  end.  Particular  courts,  or  judges, 
or  writers  may  adopt  the  method  of  discarding  this  phrase 
altogether  and  substituting  other  terms;  that  is  an  intelli- 
gible plan.  But  if  any  one  prefers  to  follow  the  course 
which  is  certain  to  be  taken  by  the  current  of  legal  usage, 
that  of  retaining  the  phrase  in  some  sense  or  other,  he  will 
be  driven,  if  he  would  speak  accurately,  either  to  tie  up 
the  term  to  a  single  meaning,  or  at  least  explicitly  to 
recognize  its  ambiguity  by  using  other  phrases  when  he 
means  to  be  exact. 

If  it  should  be  attempted  to  fix  upon  the  phrase  only 
one  of  the  two  meanings  above  mentioned,  and  to  exclude 
the  other,  various  considerations  might  be  put  forward  on 
either  side. 

In  favor  of  the  meaning  of  going  forward  with  argument 
or  evidence,  it  might  be  said  («)  That  it  is  the  meaning  of 
the  term  in  common  speech.  Whoever,  men  say,  asserts 
a  given  proposition,  has  the  burden  of  proof;  and  whoever 

25 


386  LAW   OF   EVIDENCE. 

supjjorts  the  proposition  by  sufficient  evidence  to  make  it 
probable,  shifts  the  burden  of  proof,  and  lays  it  on  bis  adver- 
sary, (b)  That  it  is  also  a  familiar  legal  usage,  (c)  That 
it  is  the  more  comprehensive  sense,  for  it  includes  not 
merely  the  duty  of  meeting  a  prima  facie  case  against  you, 
but  also  that  of  meeting  a  presumption,  and  that  of  going 
forward  at  the  beginning.  This  last  may  be  put  upon  the 
plaintiff  by  a  mere  rule  of  practice,  ^  irrespective  of  his  true 
place  in  the  procedure,  or  by  the  considerations  which 
determine  whether  a  case  is  affirmative  or  negative ;  but, 
however  fixed,  the  duty  itself  is  in  its  nature  merely  the 
duty  of  going  forward  with  the  argument  or  the  evidence, 
a  duty  wholly  separable  from  that  of  finally  establishing. 

In  favor  of  the  other,  as  an  exclusive  meaning,  it 
may  be  said,  (a)  That  it  is  the  prominent  one  in  the 
Roman  law,  and  in  jurisdictions  which  have  the  Koman 
procedure,  (b)  That  there  is  a  certain  body  of  legal  au- 
thority for  it;  e.  g.,  it  has  been  adopted  as  the  only  proper 
usage  by  the  Supreme  Court  of  Massachusetts,  and,  in 
particular  opinions,  has  been  approved  by  other  tribunals 
and  judges.^  (c)  That  the  meaning  is  a  familiar  and  well- 
approved  one  in  ordinary  legal  usage. 

But  whatever  may  be  thought  of  the  reasons,  on  one 
side  or  the  other,  and  whichever  is  the  better  course, 
the  difficulty  is  well  nigh  insuperable  of  driving  out  either 
usage.  The  experience  of  the  Supreme  Court  of  Massa- 
chusetts, in  its  long  attempt  to  limit  the  meaning  to  the 
one  usage  of  the  duty  of  establishing  the  proposition  in 
issue,   is  little  calculated  to  encourage  such  endeavors. 

It  would  seem,  therefore,  the  most  practicable  sugges- 
tion, to  snV)mit  to  what  is  probably  unavoidable,  to  recog- 
nize tlu!  i)lii-ase  as  being  an  indeterminate  expression, 
often  convenient,  often  sufficiently  intelligible  for  the 
purpose  in  liand,  and  too  well-established  to  be  wholly 
got  rid  of,  — and  to  adopt  otliei-  terms  where  it  is  neces- 

1  Dorr  V.  Rank,  128  Mass.  p.  358;  l'.a<,'o  v.  Osgood,  2  Gray,  260. 

2  Sec  ante,  3.57. 


THE  BURDEN  OF  PROOF.  387 

sary  to  mark  the  discrimination  between  one  meaning 
and  the  other.  Such  a  course  may  reasonably  be  expected 
to  commend  itself  to  careful  thinkers.  Whoever  has  a  defi- 
nite conception  to  express,  and  is  at  the  same  time  aware 
of  the  danger  of  being  misunderstood  when  he  uses  an 
ambiguous  phrase,  will  be  likely  to  choose  an  expression 
calculated,  without  danger  of  mistake,  to  convey  his 
meaning  clearly.-' 

1  See,  e.  q.,  the  careful  discriminations  in  Buswell  v.  Fuller,  89  Me. 
600,  and  Scott  v.  Wood,  81  Cal.  398. 

As  regards  the  term  onus  probandi  in  the  Roman  system,  it  seems  to 
have  had  there  the  same  undiscriminated  use  as  with  us.  According  to 
the  Roman  conception  he  who  had  furnished  evidence  at  the  outset  had 
furnished  probatio.  If  counter  evidence  were  offered,  he  must,  indeed, 
keep  up  his  probatio;  but  the  notion  of  probare  and  probatio  was  answered 
by  a  prima  facie  case. 

I  have  referred  in  the  text  to  certain  difficulties  attending  the  Massachu- 
setts effort  to  use  the  term  burden  of  proof  in  only  one  sense.  Chief  Jus- 
tice Shaw  began  it  in  1832  (see  ante,  355),  and  not,  as  I  venture  to 
think,  with  a  sufficient  recognition  of  the  fact  that  the  other  use  of  the 
phrase  was  also  perfectly  well  fi.xed  in  legal  usage,  —  a  use  of  it  in  which 
the  thought  did  not  run  out  into  any  discrimination  abovit  the  duty  of 
establishing  at  the  end  of  the  discussion.  During  the  following  twenty- 
eight  years  of  his  most  valuable  judicial  life,  the  Chief  Justice  was  able 
to  hold  the  terminology  of  his  court  with  fair  success  to  the  new  rule,  and 
to  establish  it  in  that  State.  But  the  example  has  not  been  followed. 
The  discrimination  has  been  recognized  in  other  courts,  and  this  meaning 
allowed,  and  even  preferred,  or  suggested  as  the  onlv  proper  one,  in  par- 
ticular opinions  ;  but  no  other  court,  I  believe,  has  undertaken  systemati- 
cally to  reject  the  other  meaning.  It  is  instructive  to  remark  the  troubles 
that  have  attended  the  Massachusetts  experiment.  In  1840  (Sperry  v. 
Wilcox,  1  Met.  267)  Chief  Justice  Shaw  restates  his  view,  and  calls  the 
other  use  of  the  word  "  a  common  misapprehension  of  the  law  on  the  suh- 
ject."  But  in  1842  (Jones  v.  Stevens,  5  Met.  373,  378,  Hubbard,  J.)  the 
opinion  of  the  court  lays  down  the  other  doctrine :  "  The  [auditor's] 
report  being  made  evidence  by  the  statute,  it  necessarily  shifted  the  burden 
of  proof ;  for  being  prima  facie  evidence,  it  becomes  conclusive  where  it  is 
not  contradicted  or  controlled."  In  1844  (Taunton  Iron  Co.  r.  Richmond, 
8  Met.  434)  the  reporter,  afterwards  Mr.  Justice  Metcalf,  gives  a  decision 
of  the  court  by  Shaw,  C.  J.,  that  an  auditor's  report  is  prima  facie  evidence 
for  the  party  in  whose  favor  it  is  made,  and  adds  in  his  head-note  the  ex- 
pression, "  and  changes  the  burden  of  proof."    In  1848  (Jennison  v.  Staf- 


388  LAW   OF   EVIDENCE. 

V.  Whereabout  in  the  law  shall  we  place  the  doctrine 
of  the  burden  of  proof  ?  I  have  already  indicated  the 
answer.  It  is  common  in  our  system  to  treat  of  it  in 
books  on  evidence,  when  it  is  treated  of  at  all;  and  the 
result  is  that  it  is  little  discussed,  for  it  does  not  belong 
there. -^  It  operates  in  full  force  both  before  and  after  the 
evidence  is  in.  It  belongs  under  the  head  of  legal  reason- 
ing; of  reasoning  about  law  as  about  fact;  while  the 
law  of   evidence  relates  merely  to  matter  of  fact  offered 

ford,  1  Cush.  168)  the  court  (Metcalf,  J.)  states  that,  in  a  suit  by  the  payee 
of  a  promissory  note  against  tlie  maker,  "the  burden  of  proof  is  on  the 
maker  "  to  establish  want  of  consideration.  But  two  years  later  (Delano 
V.  Bartlett,  6  Cush.  364,  368)  the  statement  is  that  the  burden  of  proof  is  on 
the  plaintiff,  and  Fletcher,  J.,  remarks  of  the  previous  case  that  "  there  is  a 
sentence  in  this  opinion  which  may  be  misunderstood  [quoting  it].  This 
must  be  understood  to  mean  that  the  burden  of  proof  is  on  the  maker  to 
rebut  the  prima  facie  case  made  by  producing  the  note,  otherwise  the 
prima  facie  evidence  will  be  conclusive."  In  this  same  year,  1850  (Wilde 
V.  Armsby,  6  Cush.  314,  319),  Metcalf,  J.,  for  the  court,  while  distinguish- 
ing, in  the  case  of  an  alteration  in  a  writing,  between  "  the  burden  of 
proof  "  and  the  "  burden  of  explanation,"  defines  the  burden  of  proof  in 
terms  borrowed  from  Baron  Parke,  but  not  understood  by  him  or  in  Eng- 
lish legal  usage  to  be  limited  to  the  duty  of  establishing  {supra,  362) ; 
"  The  effect  .  .  .  would  be  that  if  no  evidence  is  given  by  a  party  claim- 
ing under  such  an  instrument,  the  issue  must  always  be  found  against  him ; 
this  being  the  meaning  of  the 'burden  of  proof.'  1  Curteis,  640."  In 
1858  (Noxon  v.  DeWolf,  10  Gray,  343,  348),  Dewey,  J.,  for  the  court,  re- 
marks upon  the  fact  that  the  Chief  Justice  of  the  lower  court  had  used  the 
phrase  in  another  than  "  the  more  precisely  accurate  use  of  the  term  .  .  . 
as  now  held  by  the  court ;  "  but  the  court  concluded  that  it  did  not  mislead 
the  jury.  In  1859  (Morgan  v.  Morse,  13  Gray,  150)  the  judge  below  ruled 
that  "  the  burden  of  proof  was  upon  the  defendant  to  .  .  .  control  the  audi- 
tor's report,"  and  the  court  is  obliged  again  to  set  forth  the  discrimina- 
tion between  "  the  technical  sense  "  of  the  burden  of  proof  and  the  other ; 
and  then  follows  what  looks  like  a  confession  tliat  an  exclusive  use  of  the 
word  liad  not  gained  any  firm  hold  in  the  seven  and  twenty  years  since  Chief 
Justice  Sliaw  liad  begun  it :  "  Tliis  mode  of  using  the  plirase,  though  some- 
what loose  and  inaccurate,  is  quite  common,  and  where  not  improperly 
apjilied  to  a  case,  so  as  to  confuse  or  mislead  tlie  jury,  cannot  be  held  to  be 
amisilirectioii." 

'  Bciitliam,  Works,  vi.  214.  "  This  to])ic  [iho,  onus  proband i]  .  .  .  seems 
to  belong  ratln^r  to  Procedure  than  to  Evidence." 


THE  BURDEN  OF  PROOF.  389 

to  a  judicial  tribunal  as  the  basis  of  inference  to  another 
matter  of  fact.  To  undertake  to  crowd  within  the  com- 
paratively narrow  limits  proper  to  the  law  of  evidence 
the  considerations  governing  the  determination  of  matters 
of  a  far  wider  scope,  like  those  questions  of  logic  and 
general  experience  and  substantive  law  involved  in  the 
subjects  of  Presumption  and  Judicial  Notice,  and  those 
other  questions  compounded  of  like  considerations,  coupled 
with  others  relating  to  the  history  and  technicalities  of 
pleading  and  forensic  procedure,  which  lie  at  the  bot- 
tom of  what  is  called  by  this  name  of  the  "  burden  of 
proof,"  —  to  attempt  this  is  to  burst  the  sides  of  the  smaller 
subject  and  to  bring  obscurity  over  both.  And  it  is  to 
condemn  this  topic,  so  important  in  the  daily  conduct  of 
legal  affairs,  and  so  much  needing  a  clear  exposition,  to  a 
continuance  of  that  neglect,  and  that  slight  and  incidental 
treatment  which  it  has  so  long  suffered. 


390  LAW  OF  EVIDENCE. 


CHAPTER   X. 

THE   "PAROL   EVIDENCE"   RULE.i 

Few  things  are  darker  than  this,  or  fuller  of  subtle 
difficulties.  "The  admissibility,"  says  a  well-known 
writer,  "of  extrinsic  parol  testimony  to  affect  written 
instruments  is,  perhaps,  the  most  difficult  branch  of  the 
law  of  evidence."^  The  chief  reason  is  that  most  of  the 
questions  brought  under  this  head  are  out  of  place ;  there  is 
a  grouping  together  of  a  mass  of  incongruous  matter,  and 
then  it  is  looked  at  in  a  wrong  focus.  Because  the  rules 
intimated  by  this  title  deal  with  writings,  i.  e.,  with  things 
which  in  their  nature  are  evidence  of  what  they  record,  it 
is  assumed  that  they  belong  to  the  law  of  evidence.  But 
in  truth  most  of  the  matters  with  which  they  are  concerned 
have  no  special  place  in  the  law  of  evidence;  and  the  way 
out  of  these  perplexities  will  be  found  in  clearly  recog- 
nizing what  the  law  of  evidence  is,  and  in  eliminating  the 
various  parts  of  the  present  title  which  do  not  belong  under 
that  head  and  allotting  them  to  their  proper  place. 

I.  It  is  necessary  to  keep  in  mind  a  few  discrimina- 
tions, some  of  which  have  been  repeatedly  emphasized 
already.     Let  us  remind  ourselves  of  them  again. 

1.  Between  rules  of  substantive  law  and  rules  of  evi- 
dence. When  the  law  requires  a  thing  to  be  recorded,  or 
in  writing,  or  under  seal,  or  attested,  these,  often,  are 
not   requirements    of    the   law   of    evidence.       They   are 

'  For  common  ways  of  statin;^  wliat  tliis  phrase  is  thought  to  cover, 
see  infra,  39«,  307. 

2  2  Taylor  Ev.   (9th  ed.)  s.  1128. 


THE   "PAROL   EVIDENCE"   RULE.  391 

matters  of  form,  required,  iu  some  cases,  as  necessary  to 
the  constituton  of  a  thing,  as  in  the  case  of  wills  and 
deeds;  in  some,  that  the  matter  may  be  available  as  the 
ground  of  an  action,  as  in  the  case  of  things  included  in 
ss.  4  and  17  of  the  Statute  of  Frauds.  In  any  such  case 
they  belong  to  the  substantive  law  of  particular  subjects; 
and  when  testimony  or  facts  offered  in  evidence  are 
rejected  as  not  conforming  to  these  or  the  like  require- 
ments, it  is  the  substantive  law  of  the  case  that  excludes 
them.^ 

2.  Here  also  we  must  discriminate  .  between  different 
senses  of  the  word  "evidence."  In  the  sense  which  gives 
name  to  the  great  and  peculiar  department  of  law  known 
among  English-speaking  people  as  their  "law  of  evidence," 
this  word,  as  we  have  seen,  means  testimony,  or  some 
matter  of  fact  to  be  offered  to  a  legal  tribunal  as  a  basis  of 
inference  to  some  other  matter  of  fact.  It  does  not  include 
all  that  relates  to  the  general  topic  of  proof  or  legal  reason- 
ing, or  all  that  is  popularly  meant  by  the  word  "evidence," 
—  all  evidential  matter,  — but  only  such  as  it  is  necessary 
to  offer  for  use  in  court  when  a  tribunal  has  to  ascertain  a 
matter  of  fact  unknown  or  disputed.  The  rules  of  evi- 
dence regulate  this  forensic  proceeding;  they  do  not  deter- 
mine questions  of  mere  logic  or  general  experience,  or 
furnish  rules  for  conducting  processes  of  reasoning.  To 
talk  of  evidence,  then,  and  to  settle  questions  about  it,  in 
the  mere  sense  of  a  logically  probative  quality  or  fact,  is  not 
to  touch  upon  the  region  peculiar  to  the  law  of  evidence; 
indeed,  to  talk  of  it  at  all,  unless  with  reference  to  its  use 
for  the  purposes  of  litigation,  is  not  to  talk  of  what 
belongs  to  this    specific  department    of  our   law.     When 

1  When  a  judge  says,  "  I  found  my  judgment  on  one  of  the  most  use- 
ful rules  in  the  law,  namely,  that  when  parties  have  put  their  contract  into 
writing,  that  writing  determines  what  the  bargain  is,"  (Martin,  B.,  in 
Langton  v.  Higgins,  4  H.  &  N.  402),  —  he  is  not  stating  a  rule  of  evidence. 
As  to  the  Statute  of  Frauds,  see  Bedell  ;•.  Tracy,  65  Vt.  494.  As  to  the 
requirement  of  a  seal,  see  Blewitt  v.  Boorum,  142  N.  Y.  357. 


392  LAW   OF   EVIDENCE. 

we  speak  of  certain  writings  as  "evidences  of  debt"  or 
ownership,  or  of  writings  generally  as  "written  evidence," 
and  with  these  contrast  what  is  not  in  writing  as  "extrinsic 
evidence"  or  "parol  evidence,"  we  are,  for  the  most  part, 
not  using  the  word  "  evidence  "  in  any  sense  apposite  to  the 
law  of  evidence.  It  is  not  this  head  of  the  law  that  deter- 
mines the  legal  import  of  a  bond,  or  negotiable  paper,  or 
bill  of  lading.  It  is  not  the  law  of  evidence  which  requires 
a  will,  or  a  deed,  or  a  contract  about  land,  to  be  in  writing, 
and  which  determines  all  the  various  implications  and 
corollaries  of  these  requirements, — as,  e.g.,  in  deciding 
when  the  parol  or  extrinsic  matter  submitted  is  or  is  not 
consistent  with  the  rule  that  you  must  have  a  writing,  a 
specialty,  or  an  attested  document. 

3.  Furthermore,  it  is  necessary  to  remember  in  a  thou- 
sand cases,  when  it  is  said  that  "evidence  is  admissible," 
or  the  reverse,  that  this  "admissibility"  has  no  necessary 
relation  to  the  law  of  evidence.  For,  in  such  cases,  not 
merely  is  it  true  that  the  admission  or  rejection  of  what  is 
offered  may  turn  Avholly  on  a  doubt  as  to  the  mere  logical 
quality  of  what  is  offered,  or  as  to  the  true  limits  of  the 
governing  propositions  of  substantive  law,  pleading,  or 
procedure,  which  in  every  case  must  fix  the  character  of 
what  is  put  forward  as  being  relevant  or  the  reverse;  but 
also,  where  a  declaration  as  to  the  admissibility  of  evi- 
dence is  clearly  not  of  this  sort,  yet  it  is  very  often 
merely  a  single  specimen,  out  of  myriads  that  might  be 
offered,  of  probative  matter  not  excluded  by  the  law  of 
evidence.  Such  propositions  are  often  put  as  if  they 
declared  a  rule  or  doctrine  of  tliat  branch  of  the  law. 
Little  reflection  is  needed  to  see  that  such  things,  mere  in- 
stances of  what  is  provable,  may  be  but  so  many  illustra- 
tions and  ap])lications  of  the  fundamental  conceptions  in 
any  rational  system  of  proof;  namely,  that  what  is  logically 
probative,  and  at  the  same  time  practically  useful,  may  be 
resorted  to,  unless  forbidden  by  some  rule  or  principle  of 
the  law.     These  instances  may  be  multiplied  and  heaped 


THE   "PAEOL  EVIDENCE"   RULE.  393 

up  in  countless  numbers.  They  are,  in  fact.  And  yet, 
often,  he  who  does  this  is  merely  illustrating,  perhaps  with 
a  benumbing  superfluity,  the  practical  working  of  the  prin- 
ciples of  reasoning.  He  is  not  stating  the  law  of  evidence. 
4.  Another  discrimination  to  be  observed  is  that  between 
documents  which  constitute  a  contract,  fact,  or  transaction, 
and  those  which  merely  certify  and  evidence  something 
outside  of  themselves,  — a  something  valid  and  operative, 
independent  of  the  writing.  Brunner,  in  a  learned  con- 
sideration of  the  subject  of  "Documents,"  has  incidentally 
pointed  out  this  discrimination  with  precision  while  speak- 
ing of  documents  in  the  old  Italian  law,  and  of  their 
nomenclature  —  (1)  carta  or  cartula,  and  (2)  notltia  or 
memoratorimn.  He  quotes  ^  a  Lombard  document  of  the 
ninth  century  which  sets  forth  a  promise  per  ivadiam  to 
give  by  a  document  a  piece  of  land  in  exchange ;  and  goes 
on  to  remark  that  by  the  Lombard  law  a  binding  contract 
is  concluded  by  the  pledge  (wadia) ;  ^  and  that  as  regards 
the  legal  effect  of  the  transaction,  the  giving  of  a  docu- 
ment is  unimportant.  The  document  in  such  cases  is  only 
written  testimony  of  a  transaction  already  valid  and  com- 
plete without  it.  It  is  merely  an  evidence  document. 
"  The  carta  .  .  .  has  a  twofold  office.  It  is  both  a  means 
of  proof  and  a  means  of  constituting  the  transaction  which 
it  authenticates.  It  is  used  in  legal  matters  which  are 
accomplished  only  by  means  of  the  document.  As  con- 
stituting the  contract,  it  takes  the  place  of  the  wadia  ;  as 
authenticating  the  contract,  it  unites  with  the  function  of 
the  wadia  that  of  the  notitia.^'  Such  documents,  he  adds, 
are  called  "dispositive."  "The  carta,  as  contrasted  with 
the  mere  evidence  document,  is  a  dispositive  document." 
And,  in  the  Roman  law,  he  names  the  written  will  as  a 
dispositive  document,  and  a  nuncupative  will  reduced  to 
writing,  as  an  evidence  document.^ 

^   Urkunclen,  15-17. 

2  See  Essays  in  Anglo-Saxon  Law,  190. 

8  Urkunden,  61. 


394  LAW   OF   EVIDENCE. 

This  distinction  finds  abundant  illustration  in  our  own 
law,  old  and  new.  In  1422  ^  a  plaintiff  sued  in  account  for 
money  received  to  his  use ;  the  defendant  pleaded  that  he 
had  given  a  deed  to  the  plaintiff  testifying  the  receipt 
of  the  money,  and  insisted  that  the  plaintiff  must  make 
profert  of  the  deed.  Babington,  J.,  at  first  seemed  to 
agree  with  the  defendant;  and  he  put  the  case  of  one 
owing  twenty  pounds  on  a  simple  contract,  and  afterwards 
making  a  bond  for  the  same  twenty  pounds ;  such  a  one,  he 
said,  shall  be  discharged  from  the  contract  by  the  obliga- 
tion. Rolfe,  counsel  for  the  plaintiff,  said  the  deed  merely 
testifies  the  receipt.  "  As  to  the  case  you  put  of  a  bond,  I 
entirely  agree;  for  the  contract  and  the  obligation  are  two 
different  contracts,  and  by-  the  greater  I  am  discharged 
from  the  less.  But  in  the  case  of  the  receipt  and  the 
deed  which  witnesses  the  receipt,  there  is  but  one  con- 
tract." In  1460,^  on  occasion  of  a  question  put  to  the 
judges  by  the  Recorder  of  London,  it  appeared  that  one 
had  sued  in  debt  for  a  sale  of  cloth,  and  the  defendant 
would  wage  his  law;  upon  which  tlie  plaintiff  set  up  a 
custom  of  London  that  the  defendant  should  be  ousted  of 
his  law  if  the  plaintiff  put  forward  "  a  paper  or  parchment 
written  and  sealed  with  the  defendant's  seal,  which  proves 
the  contract."  The  plaintiff  made  profert  of  such  a  paper, 
testifying  that  the  defendant  had  agreed  to  the  contract. 
Laken,  serjeant,  said  that  the  action  should  have  been 
brought  on  tlie  paper,  and  not  on  the  contract;  but  Prisot, 
C.  J.,  tliought  otherwise.  "The  contract,"  he  said,  "is 
not  determined  by  this.  It  is  determined  where  one 
makes  a  bond  upon  a  contract,  or  if  a  man  recovers  in 
debt  upon  a  contract.  Here  no  bond  is  shown,  but  only 
a  paper  testifying  the  contract.  If  I  bail  goods  by  deed 
indented,"  he  added,  "and  afterwards  bring  detinue  for 
them,  I  am  not  to  count  on  the  indenture,  for  that  is  only 

1  Y.  B.  1  II.  VI.  7,  31  ;  Fitz.  Arc.  i ;  scmhlc,  s.  c.  Y.  B.  2  II.  VI.  9,  5. 
'^  Fitz.  DottP.,  68;  s.  o.  Y.  B.  39  II.  VI.  34,  46  (ed.  1689).     Some  older 
editions  of  this  Year  Book  omit  impurtniit  pai-ts  of  the  case. 


THE  "PAROL   EVIDENCE"  RULE.  395 

a  thing  testifying  the  bailment.  It  is  the  same  if  I  make 
a  contract  by  deed  indented.  I  shall  not  be  compelled  to 
count  on  the  indenture;  for  the  contract  is  not  deter- 
mined upon  the  indenture,  but  continues,  and  a  man  may 
elect  how  he  will  bring  his  action."  "To  which,"  adds 
the  reporter,  "all  the  justices  agreed."^ 

Whenever,  therefore,  the  law  requires,  in  any  trans- 
action, a  formal  document,  the  carta,  it  is  demanding 
something  more  than  written  evidence ;  it  is  making  form 
necessary,  —  as  when  a  seal  to  a  deed  is  required,  or  three 
witnesses  to  a  will.  As  there  is  no  will  without  the  wit- 
nesses, and  no  deed  without  the  seal,  so  neither  the  carta, 
nor  any  part  of  it,  can  exist  outside  of  the  writing.  And 
yet,  from  the  nature  of  it,  this  sort  of  writing  is  also 
evidence;  as  they  used  to  say,  it  "testifies."  As  con- 
trasted with  this  sort  of  thing,  it  is  a  notitia,  a  memora- 
toriam  only,  that  is  called  for  when  the  English  Statute  of 
Frauds,  in  ss.  4  and  17,  is  content  with  "some  note  or 
memorandum  in  writing  "  of  the  agreements  there  referred 
to.  2 

1  It  seems  that  one  might  count  upon  the  specialty  if  he  chose,  and  it 
"could  not  be  disputed,  unless  by  matter  of  as  high  a  nature."  Fitz., 
Barre,  19;  s.  c.  18  H.  VI.  17,  8  (1439). 

In  1522-1523  (Y.  B.  14  H.  VIII.  17,  6),  in  a  long  and  interesting  case, 
Brudnel,  C.  J.,  said :  "  Things  which  pass  by  parol  are  made  subject  to  a 
condition,  as  well  by  parol  as  in  writing;  ...  for  a  deed  is  only  proof  and 
testimony  of  the  party's  agreement.  As  a  deed  of  feoffment  is  only  proof 
of  the  livery,  the  land  passes  by  the  livery  ;  but  when  the  deed  and  the 
livery  coexist,  it  is  a  proof  of  the  livery."  Compare  Saunders,  J.,  in  con- 
sidering a  deed  of  lease  of  laud,  in  Throckmerton  v.  Tracy,  Plowden,  p. 
161  (1556) :  "  And  he  said  he  was  of  the  like  opinion  that  Brudnel  seemed 
to  be  of  in  14  H.  VIII.,  that  contracts  shall  be  as  it  is  concluded  and 
agreed  between  the  parties,  according  as  their  intents  may  be  gathered. 
.  .  .  And  certainly  the  words  are  no  other  than  the  testimony  of  the 
contract." 

2  "The  contract  itself,  and  the  memorandum  which  is  necessary  to 
its  validity  under  the  Statute  of  Frauds,  are  in  their  nature  distinct 
things.  The  statute  presupposes  a  contract  by  parol.  .  .  .  The  contract 
may  be  made  at  one  time,  and  the  note  or  memorandum  of  it  at  a  subse- 
qnont   time."  — Hoar,  J.  (for  the   court),   in   Lerned  v.  Wannemacher, 


396  LAW   OF   EVIDENCE. 

II.  Leaving,  now,  these  discriminations,  and  coming  to 
the  precept  which  goes  by  the  name  of  "The  Parol 
Evidence  Rule,"  it  is  ordinarily  said  that  in  the  case  of 
contracts  in  writing,  wills,  deeds,  and  other  solemn  docu- 
ments, parol  evidence  is  not  admissible  to  vary  or  add  to 
their  legal  effect,  or  to  cut  it  down;  and  especially  that 
such  evidence  of  the  writer's  intention  is  not  admissible. 
In  this  expression,  "  parol "  means  what  is  extrinsic  to 
the  writing,  and  "evidence"  means  testimony  or  facts, 
conceived  of  as  tending  to  show  what  varies,  adds  to,  or 
cuts  down  the  writing,  or  to  show  the  intention.  The 
phrase  parol,  or  extrinsic,  evidence  stands  contrasted  with 
that  intrinsic  evidence  which  is  found  in  the  writing 
itself. 

Greenleaf 's  statement  of  the  rule  as  relating  to  contracts 
will  serve  the  present  purpose  well  enough.  He  says :  ^ 
"When  parties  have  deliberately  put  their  engagements 
into  writing,  in  such  terms  as  import  a  legal  obligation, 
without  any  uncertainty  as  to  the  object  or  extent  of  such 
engagement,  it  is  conclusively  presumed  that  the  whole 
engagement  of  the  parties,  and  the  extent  and  manner  of 
their  undertaking,  was  reduced  to  writing;  and  all  oral 
testimony  of  a  previous  coUoqi/liou  between  the  parties,  or 
of  conversations  or  declarations  at  the  time  when  it  was 
completed,  or  afterwards,  as  it  would  tend,  in  many  cases 
to  substitute  a  new  and  different  contract  for  the  one 
which  was  really  agreed  upon,  to  the  prejudice,  possibly, 
of  one  of  the  parties,  is  rejected.  Iti  other  words,  as  the 
rule  is  now  more  briefly  expressed, '  parol  contemporaneous 
evidence  is  inadmissible  to  contradict  or  vary  the  terms  of 
a  valid  written  instrument.'"^ 

9  Allen,  412.  That  the  validity  of  the  contract  is  not  toucliod  by  statutes 
like  the  English  one,  but  only  the  remedy,  see  Townsend  v.  Ilarj^rave,  118 
Ma.s».  32.') ;  Maddison  v.  Alderson,  8  App.  Cas.  467,  488  (per  Lord  Black- 
bum)  ;  Lucas  v.  Dixon,  22  Q.  B.  1).  .357. 

1  Kvid.  i.  8.  27.5. 

2  "'!'ho  learned  counsel  .  .  .  admitted  as  fully  as  their  opponents  could 


THE   "PAROL  EVIDENCE"   RULE.  397 

It  takes  bvit  a  little  attention  to  the  rule  thus  stated, 
and  the  reasons  on  which  it  is  rested,  to  perceive  that  the 
real  aim  and  substance  of  it  have  to  do  not  with  excluding 
evidence,  but  with  preventing  the  thing  itself  in  aid  of 
which  the  evidence  is  offered,  namely,  the  contradicting 
or  varying  of  the  written  expression  and  tlie  written  form, 
by  an  expression  which  is  not  written.  If  this  aim  were 
a  legitimate  one,  as  it  is  in  the  equitable  reformation  of 
documents,  the  evidence  tending  to  prove  it  would  be 
admissible.  It  is  never  the  law  of  evidence  that  shuts  it 
out,  but  the  substantive  law  of  the  topics  to  which  these 
documents  relate.'^ 

Another  wider  statement  of  the  rule  is  given  by  Stephen  :  ^ 
"  When  any  judgment  of  any  court  or  any  other  judicial 
or  official  proceeding,  or  any  contract  or  grant,  or  any 
other  disposition  of  property  has  been  reduced  to  the  form 
of  a  document  or  series  of  documents,  no  evidence  may 
be  given  of  such  judgment  or  proceeding,  or  of  the  terms 
of  such  contract,  grant,  or  other  disposition  of  property, 
except  the  document  itself,  or  secondary  evidence  of  its 
contents  in  cases  in  which  secondary  evidence  is  admissible 
under  the  provisons  hereinbefore  contained.  Nor  may 
the  contents  of  any  such  document  be  contradicted,  altered, 
added  to,  or  varied  by  oral  evidence. 

As  regards  the  several  parts  of  this  statement  of  the 
rule,  it  may  be  said,  (1)  That  the  last  sentence,  like  the 
propositions  of  Greenleaf ,  really  forbids,  not  the  evidence, 
but  the  thing  which  is  attempted,  namely,  the  varying, 
contradicting,  etc.,  of  what  is  in  writing  by  what  is  oral. 
(2)  That  so  far  as  this  statement  merely  forbids  proving 
the  contents  of  a  writing  otherwise  than  by  the  writing 

desire,  that  parol  testimony  cannot  be  received  to  contradict,  vary,  add  to, 
or  subtract  from  the  terms  of  a  written  contract,  or  the  terms  in  which  the 
parties  have  deliberately  agreed  to  record  any  part  of  their  contract."  Per 
Lord  Morris,  in  Bank  of  Australia  v.  Palmer,  [1897]  App.  Cas.  540,  545. 

1  1  Biddle,  Ins.  s.  523. 

2  Diff.  Evid.  art.  90. 


398  LAW   OF   EVIDENCE. 

itself,  it  is  covered  by  the  ordinary  rule  of  the  law  of  evi- 
dence, applicable  not  merely  to  solemn  writings,  of  the 
sort  here  named,  but  to  others;  known  sometimes  as  the 
"Best  Evidence  rule."  And  (3)  that  in  so  far  as  the  rule 
makes  the  writing  the  only  evidence  of  the  thing  it  em- 
bodies, i.  e.,  of  the  judgment,  the  contract,  the  devise,  etc., 
it  is  in  reality  declaring  a  doctrine  of  the  substantive  law 
of  these  subjects,  namely,  in  the  case  of  a  written  contract, 
that  all  preceding  and  contemporaneous  oral  expressions 
of  the  thing  are  merged  in  the  writing  or  displaced  by  it; 
or,  as  in  the  case  of  wills,  that  the  written  form  is  essential 
to  the  legal  existence  of  the  thing  itself. 

Let  me  illustrate  these  suggestions  by  a  brief  reference 
to  some  well-known  classes  of  cases. 

1.  When  it  is  said  of  judgments  and  matters  of  record 
generally,  that  they  cannot  be  "contradicted,  added  to,  or 
varied  by  oral  evidence,"  what  is  generally  meant  is  to 
express  the  final  and  conclusive  operation  of  these  things. 
It  is  the  well-known  doctrine  as  to  judgments,  in  the 
domestic  forum,  tliat  they  are  "as  a  plea  a  bar,  or  as  evi- 
dence, conclusive,  between  the  same  parties,  upon  the 
same  matter,  directly  in  question  in  another  court,"  etc.^ 
There  is  no  occasion  here  to  go  into  any  full  or  exact 
statement  of  this  doctrine.  It  has  certain  well-known 
qualifications.  Judgments  may  be  impeached  by  direct 
proceedings  for  that  purpose.  Moreover  judgments  of 
foreign  States,  and,  in  a  less  degree,  those  of  other  States 
of  our  own  nation,  are  open  to  impeachment  on  grounds 

^  Do  Cjirey,  C.  J.,  in  tlie  advisory  opinion  of  tlio  judges  to  the  House  of 
Lords  in  the  Duchess  of  Kingston's  case,  20  State  Trials,  .'iS?  n.  (1776). 
Of  what  are  called  "  interstate  judgments  "  in  the  TTnited  States,  it  is  the 
rule  that  "  when  duly  ])leadod  and  proved  in  a  court  of  that  State  [;'.  e., 
any  State  in  the  Union]  they  have  tlie  effect  of  being  not  merely  prima 
Jiirie  evidence,  l)Ut  conclusive  proof  of  tlie  rights  thereby  adjudicated  ;  and 
a  refusal  to  give  tlicnii  tlu^  force  and  effect,  in  this  respect,  which  they  had 
in  the  State  in  whicli  lliey  were  rendered,  denies  to  the  party  a  right 
secured  to  him  by  tiie  constitution  and  laws  of  the  United  States."  —  Per 
Gray,  J.,  in  Huntington  v.  Attrill,  146  U.  S.  657,  685. 


THE   "PAROL  EVIDENCE"   RULE.  399 

not  applicable  to  domestic  judgments;  and,  under  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  even  in  the  domestic  forum,  the  judgments  of  that 
forum  may  be  impeached  in  a  manner  and  on  grounds  not 
recognized  at  common  lavv.^ 

Now,  where  such  doctrines  as  these,  and  the  qualifica- 
tions of  them,  are  expressed  in  terms  of  evidence,  one 
must  look  beneath  the  form  of  expression  if  he  would 
truly  understand  what  is  thus  phrased.  When  it  is 
said,  e.g.,  that  "if  it  be  a  judgment  ...  of  a  domes- 
tic court  of  general  jurisdiction,  and  the  record  de- 
clares that  notice  has  been  given,  such  declaration  cannot 
be  contradicted  by  extraneous  proof.  .  .  .  The  judgment 
...  is  sustained,  not  because  a  judgment  rendered  with- 
out notice  is  good,  but  because  the  law  does  not  permit 
the  introduction  of  evidence  to  overthrow  that  which  for 
reasons  of  public  policy  it  treats  as  absolute  verity.  The 
record  is  conclusively  presumed  to  speak  the  truth,  and 
can  be  tried  only  by  inspection ;  "  ^  —  when  that  sort  of 
thing  is  said,  the  real  doctrine  is  that  a  certain  defence  or 
answer  to  a  domestic  judgment  is  rejected.  It  is  a  denial 
of  the  right  to  qualify  the  full  verity  and  operation  of 
such  judgments  collaterally,  as  the  phrase  is.  If  this 
defence  or  answer  were  allowed,  the  evidence  would  be 
received;  In  a  suitable  direct  proceeding,  as  by  a  writ  of 
error  or  a  motion  to  vacate  the  judgment,  there  is  the 
right  to  ask  the  court  that  gave  the  judgment  to  annul 
it;  and  in  such  proceedings  nobody  ever  heard  that 
extrinsic  evidence  to  prove  the  facts  was  not  admissible. 
In  any  proceeding  before  any  court,  wherever  such 
facts  are  in  point  of  substantive  law  available,  it  is  a 
mere  matter  of  course  that  extrinsic  evidence  of  them  is 
admissible.^ 

1  Needham  v.  Thayer,  147  Mass.  536,  overruling  Cook  v.  Darling,  18 
Pick.  393  ;  Peunoyer  v.  Neff,  95  U.  S.  714  (1877). 

2  Wilcher  v.  Robinson,  78  Va.  p.  616. 

*  Carleton  v.  Bickford,  13  Gray,  591 ;  Thompson  v.  "Whitman,  18  WalL 


400  LAW  OF  EVIDENCE. 

2.  In  an  action  for  the  breach  of  covenants  in  a  deed, 
there  was  a  question  as  to  the  true  boundary  of  the  estate 
conveyed,  and  a  witness  for  the  plaintiff  (the  plaintiff's 
grantor)  was  allowed  to  state  what  was  said  by  the  defend- 
ant, the  original  grantor,  to  be  the  true  boundary,  during 
the  negotiations  for  his  own  purchase  from  the  defendant. 
The  defendant  objected  to  this  "parol  evidence,"  but  it 
was  admitted  in  the  Supreme  Court  of  New  York.  The 
case  ultimately  reached  the  Court  of  Errors,^  and  the 
decision  was  reversed;  the  Chancellor  (Walworth)  remark- 
ing that  the  question  was  not  what  land  Tymason  intended 
to  convey  to  May,  but  what  land  is  covered  by  the  descrip- 
tion in  the  deed :  "  It  is  impossible  for  me  to  discover  upon 
what  principle  May's  testimony  could  be  received  as  legal 
evidence  to  support  the  plaintiff's  action.  .  .  .  Our  record- 
ing Acts  would  afford  no  protection  whatever  to  subsequent 
purchasers  if  the  abuttals  and  boundaries  contained  in 
written  conveyances  should  be  considered  as  referring 
merely  to  what  was  supposed  by  the  immediate  parties  to 
be  the  land  described  in  the  deed."  In  such  a  case  as  that 
it  is  not  the  law  of  evidence  that  is  applied,  but  the  sub- 
stantive law  regulating  conveyances,  and  the  substantive 
law  as  to  the  construction  and  effect  of  writings.  You 
cannot,  says  the  law,  convey  land  without  a  deed,  and, 
therefore,  you  cannot  make  "parol"  matter  operate  by 
way  of  an  addition  to  the  deed,  for  it  lacks  the  required 
form.     But  were  the  doing  of   this  allowed,  evidence  to 

457  ;  Needham  v.  Thayer,  147  Mass.  536  ;  Denton  v.  Noyes,  fi  Johns.  296; 
compare  Post  v.  Charlesworth,  21  N.  Y.  Suppl.  168.  To  the  same  class 
of  cases  belongs  a  floctrinc  laid  down  by  tlie  Supreme  Court  of  the 
United  States  as  to  the  collateral  impeachment  of  patents  of  land  by  the 
United  States,  refusing,  in  certain  cases,  "to  permit  tlie  validity  of  the 
patent  ...  to  bo  sniijcctod  to  the  test  of  the  verdict  of  a  jury  on  such 
oral  testimony  as  might  1)e  l)rought  before  it.  It  would  be  substituting 
the  jury,  or  the  court  sitting  .as  a  jury,  for  the  tribunal  which  Congress 
had  provided  to  determine  the  question."  Prr  Miller,  J.,  in  French  v. 
Fyan.  9.3  IT.  S.  169;  McCormick  v.  Hayes,  l-fiO  U.  S.  332. 
1  Bates  V.  Tvmason,  13  Woiid.  300;  14  ///.  671. 


THE  "PAROL  EVIDENCE"  RULE.  401 

prove  it  would  be  received.  It  is  rejected  because,  if 
admitted,  it  could  be  of  no  use. 

3.  It  is  the  Countess  of  Rutland's  case  ^  that  is  so  often 
cited  for  the  rule  that  "parol  evidence  is  not  admissible  to 
vary  or  add  to  a  writing."  But  that  case,  as  regards  this 
subject,  merely  applied  a  rule  as  to  the  declaration  of  the 
uses  of  fines ;  namely,  the  doctrine  briefly  stated  in  Jones 
V.  Morley,^  that  if  the  fine  be  levied  pursuant  to  a  covenant 
declaring  the  uses,  one  cannot  set  up  an  intervening  oral 
declaration  of  uses,  or  deny  the  uses  declared  in  the  cove- 
nant; unless,  indeed,  there  be  an  intervening  declaration 
by  "other  matter  (than  the  covenant),  as  high  or  higher." 
Coke's  report  of  the  opinion  of  Popham,  C.  J.,  goes  on: 
"  For  every  contract  or  agreement  ought  to  be  dissolved  by 
matter  of  as  high  a  nature  as  the  first  deed.  Nihil  tarn 
conveniens  est  naturali  ceiinitati,  unumquodque  dissolvi  eo 
ligamine  quo  ligcdum  est.  Also  it  would  be  inconvenient 
that  matters  in  writing  made  by  advice  and  on  considera- 
tion, and  which  finally  import  the  certain  truth  of  the 
agreement  of  the  parties,  should  be  controlled  by  averment 
of  the  parties,  to  be  proved  by  the  uncertain  testimony  of 
slippery  memory.  And  it  would  be  dangerous  to  pur- 
chasers and  farmers  and  all  others  in  such  cases  if  such 
nude  averments  against  matters  in  writing  should  be 
admitted." 

It  is  the  use  of  such  matter,  not  the  proving  of  it,  that 
is  objectionable ;  it  is  the  averment  of  it  in  pleading,  the 
having  an  issue  on  it,  the  going  to  the  jury  with  it,  that 
is  forbidden.  In  like  manner  it  is  still  a  doctrine  of  the 
substantive  law  of  contracts  under  seal  that  is  asserted, 
when,  in  conflict  with  some  things  said  in  this  passage 
from  Coke's  Reports,  we  read  in  a  late  case ,3  that  "Not- 
withstanding what  was  said  in  some  of  the  old  cases,  it  is 
now  recognized  doctrine  that  the  terms  of  a  contract  under 

i  5  Co.  Rep.  2.5  (1604). 
2  2  Salk.  677  (1696-7). 
8  Canal  Co.  v.  Ray,  101  U.  S.  p.  52  (1879). 
26 


402  LAW   OF   EVIDENCE. 

seal  may  be  varied  by  a  subsequent  parol  agreement. 
Certainly,  whatever  may  have  been  the  rule  at  law,  such 
is  the  rule  in  equity.  .  .  .  The  rule  in  equity  is  undoubted." 
And  so  in  England,  under  the  Judicature  Act,  a  parol 
agreement  "may  be  applied  directly  in  answer  to  any  pro- 
ceeding upon  the  original  deed  brought  contrary  to  the 
terms  and  faith  of  the  agreement;  the  ancient  technical 
rule  of  the  common  law  that  a  contract  under  seal  cannot 
be  varied  or  discharged  by  a  parol  agreement  is  thus  prac- 
tically superseded."  ^  Whichever  way  the  rule  be,  the  law 
of  evidence  is  untouched.  The  change  relates  to  the 
possibility  of  using  the  parol  agreement;  not  to  the  prov- 
ing of  it,  but  to  the  use  of  it  as  a  defence  or  a  ground  of 
action. 

4.  And  so  in  modern  times  when,  as  among  "parol" 
contracts,  there  was  applied  to  "parol  contracts  in  writ- 
ing "  the  old  doctrine  and  the  old  remarks  about  "  contracts 
in  writing,"  meaning  sealed  writings,  — it  was  still  a  doc- 
trine of  the  law  of  contract.  In  Meres  et  at.  v.  Ansell  et 
al.,^  the  court,  without  citing  any  authority,  deals  with  a 
parol  contract  in  writing  as  if  it  were  covered  by  the  rules 
applicable  to  a  sealed  contract.  The  defendants  had  con- 
tracted in  writing  for  an  exchange  of  certain  property  of 
theirs  for  the  grass  from  Boreham  Meadow,  in  the  plain- 
tiffs' occupation;  the  agreement  said  nothing  of  a  close 
called  Millcroft,  which  was  also  in  the  plaintiffs'  posses- 
sion. The  defendants,  chiiming  tlie  grass  in  Millcroft 
also,  were  sued  in  trespass  for  acts  done  there;  and  upon 
pleading  not  guilty  and  a  license,  were  allowed  by  Lord 
Mansfield  to  prove  that  at  the  time  of  making  the  writing 
it  was  agreed  ora.lly  that  the  defendants  should  liave  not 
only  "the  hay  from  off  Boreham  Meadow,  but  also  the 
wliole  possession  of  the  soil  and  produce  both  of  Boreham 
Meadow  nnd  Millcroft."     On  a  motion  for  a  new  trial,  on 

1  Lciikc,  l)i^'.  ('out.  802. 

'^  .'J  Wils.  275  (1771j.  As  to  tliis  case,  see  2  Evaus's  Decis.  of  Lord 
Mansfield,  302  n. 


THE   "PAROL   EVIDENCE"   RULE.  403 

the  ground  of  admitting  this  "parol  evidence,"  the  Court 
of  Common  Pleas  granted  a  new  trial,  declaring  "that  no 
parol  evidence  is  admissible  to  disannul  and  substantially 
to  vary  a  written  agreement;  the  parol  evidence  in  the 
present  case  totally  annuls  and  substantially  alters  and 
impugns  the  written  agreement."  Here  again  the  trouble 
was  with  the  agreement,  and  not  the  evidence;  it  lay  in 
the  fact  that  the  form  of  the  agreement  was  oral.  If  the 
agreement  could  not  be  used,  when  proved,  evidence  of  it 
was,  of  course  inadmissible,  but  the  exclusion  is  not  refer- 
able to  the  law  of  evidence.  The  old  doctrine,  which  de- 
clared matter  "in  writing,"  i.e.,  under  seal,  to  be  of  a 
higher  grade  than  parol,  is  thus  extended,  in  modern  times, 
to  all  contracts  and  solemn  instruments  which  are  in  writ- 
ing in  our  modern  sense,  i.  e.,  to  all  of  them  not  oral;  it 
is  not  now  limited  to  what  is  by  law  required  to  be  in  writ- 
ing. This  application  of  the  rule  rests,  in  part  at  any  rate, 
upon  a  supposed  convention  or  intent  of  the  party  or  par- 
ties in  putting  the  thing  into  writing.^ 

In  this  last  case  the  fourth  section  of  the  Statute  of 
Erauds  required  that  either  the  agreement  itself  "  or  some 
memorandum  or  note  thereof"  should  be  in  writing  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereto  authorized  by  him.  The  same  statute,  in 
§  17,  as  regards  certain  contracts  for  the  sale  of  goods, 
required,  as  one  of  several  alternatives,  that  there  be 
"some  note  or  memorandum  in  writing;"  and  in  §  5,  in 
the  case  of  all  devises  and  bequests  of  real  estate,  that 
they  should  be  "in  writing  and  signed  .  .  .  and  .  .  . 
attested  .  .  .  by  three  or  four  credible  witnesses."  While 
the  statute,  in  requiring,  in  §  4,  that,  if  one  would  bring 
an  action,  he  should  have  a  writing  of  the  sort  named, 
and,  in    §    17,  a   writing  or   one   of  the  other  alternative 

1  "  We  are  of  opinion  that  tlie  rule  relied  ou  by  the  plaintiffs  only 
applies  where  the  parties  to  an  agreement  reduce  it  to  writing,  and  agree 
or  intend  that  that  writing  shall  be  their  agreement."  —  Pollock,  C.  B. 
(for  the  court),  in  Harris  v.  Rickett,  4  H.  &  N.  1. 


404  ^        LAW  OF  EVIDENCE. 

things,  doubtless  has  an  eye  to  the  simplicity  and  certainty 
of  evidence  in  court,  it  is  not  merely  looking  out  for  that. 
Eor  the  writing  must  exist  at  the  time  the  action  is 
brought;  one  obtained  after  that  time,  while  perfectly 
answering  any  requirement  of  evidence,  is  not  sufficient.^ 
The  statute,  therefore,  determines  certain  prerequisites 
to  the  bringing  of  an  action;  and  when  a  writing  is  a 
prerequisite,  it  is  only  putting  the  same  thing  in  other 
words  to  say  that  nothing  but  a  writing  will  answer.  The 
real  character  of  the  proposition  is  obscured  by  phrasing 
it  in  terms  of  evidence;  by  saying,  you  cannot  "have 
recourse  to  parol  proof;"  and  you  cannot  supplement  an 
insufficient  paper  "  by  means  of  parol  evidence,  which  the 
statute  forbids."^  The  true  proposition  is  one  of  sub- 
stantive or  procedural  law,  namely,  that  a  party  cannot 
ground  an  action  upon  an  oral  agreement,  unless  there  be 
also  a  note  of  it  in  writing,  existing  when  the  action  is 
brought. 

5.  It  is  in  the  case  of  wills,  probably,  that  one  may  see 
the  most  conspicuous  illustrations  of  the  errors  in  ques- 
tion; and  Wigram's  valuable  little  treatise^  gives  currency 
to  them.  Wigram,  as  every  lawyer  knows,  made  admi- 
rable contributions  to  the  subject,  but  in  dealing  with  con- 
struction and  interpretation,  he  accepted  too  readily  the 
current  language  of  the  books.  He  puts  it  (§  2)  as  the 
object  of  the  book  to  consider  "under  what  restrictions  is 
the  admission  of  extrinsic  evidence  in  aid  of  the  exposition 
of  a  will  consistent  with  the  provisions  of  a  statute  which 
makes  a  writing  indispensable  to  the  purpose  for  which 
the  instrument  was  made."  Of  construction,  and  of  this 
famous  book,  something  more  will  be  said  later.     But  it 

1  TiHilale  v.  Harris,  20  Pick.  9,  p.  14  ;  Bill  v.  Bamont,  9  M.  &  W.  36 ; 
Gibson  r.  Holland,  L.  IJ.  1  C.  P.  1  ;  Lucas  v.  Dixon,  22  Q.  B.  D.  357  ;  Re 

Iloylo,  67  L.  T.  Kop.  674. 

■^  Curtis,  .r.,  ill  Salmon  Falls  Man.  Co.  ?•.  Coddanl,  14  ITow.  446- 

"  "  An  ExaiTiination  of  tlio  Kiilos  of  Law  rospoclinp;  the  Admission  of 

Extrinsic  Evidence  in  Aid  of  the  Interpretation  of  Wills." 


THE   "PAROL   EVIDENCE"   RULE.  405 

is  proper  to  say  here  that  the  real  subject  of  the  book 
concerns  the  interpretation  and  construction  of  wills.  It 
is  the  same  general  topic  very  ably  discussed  by  Hawkins 
in  his  well-known  treatise,^  and  in  an  earlier  paper, ^  where 
the  nature  of  the  inquiry  is  described  with  penetration  and 
accuracy.  In  that  paper  the  special  questions  are  indi- 
cated as  being  these:  AVhat  are  the  limits  of  inferential 
interpretation  ?  What  constitutes  a  siifficieiit  expression 
in  writing  ?  How  far  may  you  supplement  the  words,  the 
primary  expression  of  the  writer's  intention,  by  indica- 
tions of  it  drawn  from  extrinsic  sources  ?  And  so,  in 
Wigram's  book,  the  chief  question  is  not  one  of  the  ad- 
mission or  exclusion  of  extrinsic  evidence;  but  of  the 
true  nature  and  limits  of  interpretation,  and  how  far  in- 
ferences may  be  drawn  from  extrinsic  facts  in  aid  of  it. 
The  law  of  evidence  has  little  to  say  in  answer  to  these 
questions. 

6.  This  same  confusion  of  questions  as  to  what  case  a 
man  has  in  point  of  substantive  law,  with  other  questions 
as  to  how  he  may  prove  it,  if  he  has  one,  appears  in  a 
great  variety  of  other  instances.  In  cases  not  involving 
writings,  it  is  easy  enough  to  see  that  the  long,  gradual 
amelioration  of  law  and  legal  procedure,  allowing  new 
grounds  of  action  and  defence,  enlarging  the  scope  of 
existing  actions,  and  avoiding  circuity,  —  while  it  means 
admitting  evidence  which  could  not  be  given  before,  yet 
may  involve  no  change  whatever  in  the  law  of  evidence. 
New  things  may  be  done,  and  therefore  new  things  may 
be  proved ;  and  if  new  things  may  be  proved,  other  new 
things  may  be  proved  by  way  of  meeting  them.  This  was 
the  significance  of  relief  in  equity,  —  what  could  not  be 
done  at  law  might  be  done  there;  and  if  so,  then,  of 
course,  pleading  and  proof  must  correspond.     Yet  all  this 

1  "A  Concise  Treatise  on  the  Construction  of  Wills"  (1863). 

2  On  the  Principles  of  Legal  Interpretation,  with  Reference  especially 
to  the  Interpretation  of  Wills,  2  Judicial  Soc.  Papers,  298  ;  read  in  1860. 
Infra,  577. 


406  LAW   OF   EVIDENCE. 

involved  no  change  in  the  rules  of  evidence.  This,  again, 
is  the  import  of  the  extension  of  equitable  defences,  by- 
statute  and  at  the  common  law,  and  even  of  the  whole  in- 
troduction of  new  forms  of  action;  namely,  that  things 
can  now  be  done  which  could  not  be  dene  before;  done 
in  one  way  which  could  not  be  done  in  another.  When- 
ever they  could  be  done,  of  course  they  could  be  alleged 
and  proved.  In  such  cases,  the  new  state  of  things 
is  often  expressed  by  saying  that  evidence  of  the  new 
thing  is  admissible;  yet  it  is  plain  that  this  does  not 
touch  the  real  character  of  the  change.  A  change  has 
taken  place  in  substantive  law  or  procedure;  none  in  the 
law  of  evidence. 

No  less  is  this  true  as  regards  writings,  and  the  same 
secular  process  which  has  liberalized  the  law  relating  to 
them.  In  Collins  v.  Blantern,^  as  it  seems,  it  was  first 
distinctly  held  that  illegality  of  consideration,  not  appear- 
ing upon  the  face  of  a  bond,  was  a  good  defence.  Such  a 
bond,  it  was  laid  down  by  the  court  (Wilmot,  C.  J.), 
apparently  upon  a  demurrer  to  the  plea,  is  void  by  the 
common  law.  "The  law  will  legitimate  the  showing  it 
void  ab  initio,  and  this  can  only  be  done  by  pleading;  .  .  . 
what  strange  absurdity  would  it  be  for  the  law  to  say  that 
this  contract  is  wicked  and  void,  and  in  the  same  breath 
for  the  law  to  say  you  shall  not  be  permitted  to  plead  the 
facts  which  clearly  show  it  to  be  wicked  and  void."  And 
so,  fifteen  years  later,  in  Pole  v.  Harborn,^  on  a  demurrer 
to  a  like  plea,  Lord  Mansfield  said :  "  There  cannot  exist 
such  an  absurdity  as  that  a  man  shall  have  a  good  defence 
to  an  action,  and  not  be  able  to  show  or  take  advantage  of 
it  either  by  pleading  or  in  evidence.  .  .  .  The  foundation 
is  that  you  shall  not  by  parol  impeach  a  written  agree- 
ment, and  say  that  the  agreement  was  diiferent;  but,  the 

'  2  Wils.  .'il7   fl7f)7);  Aines,  Specialty  Contracts  aud  Equitable  De- 
fences, llarv.  Law  Rev.  i.\.  49,  52. 
^  9  East,  415  u. 


THE   "PAROL  EVIDENCE"   RULE.  407 

agreement  being  admitted,  the  party  may  come  and  show 
circumstances  to  vitiate  the  whole  proceeding."  ^ 

1  Six  centuries  ago  the  Statute  of  Fines,  1  Stat.  Realm,  128  (1299), 
after  reciting  that  parties  liave  lately  been  allowed  to  set  up  certain  de- 
fences to  fines,  enacts  that  hereafter  no  such  exceptions  or  answers,  or 
submitting  them  to  juries,  shall  be  allowed.  During  the  period  of  the 
Year  Books  there  was  great  rigor.  "  If  a  man,"  said  Newton,  C.  J.,  in 
1440  (Y.  B.  19  H.  VI.  44,  93),  "levy  a  fine  of  my  lands  by  my  name,  I 
shall  have  no  other  remedy  than  a  writ  of  deceit,  by  which  I  shall  recover 
damages  according  to  my  loss."  "  To  be  sure,"  said  Robert  Dauby,  J.,  in 
1455  (Y.  B.  34  H.  VL  14,  36),  "if  there  be  two  Robert  Danbies,  and  one 
of  them  make  conusance  of  a  matter  whereby  I  am  damaged,  I  can'  show 
that  I  am  not  the  person,  but  that  there  is  another  Robert."  (Compare 
Cary  (ed.  1650),  22,  in  1602.)  And  in  1596,  about  the  time  that  Bacon 
wrote  his  famous  and  much-abu.sed  maxim  about  ambiguities,  the  new 
Lord  Keeper,  Egerton  (Hubert's  case,  Cro.  Eliz.  531  ;  s.  c.  12  Co.  123), 
"said  that  he  had  always  noted  this  difference  :  If  one  of  my  name  levies 
a  fine  of  my  land,  I  may  well  confess  and  avoid  this  fine  by  showing  the 
special  matter,  for  that  stands  well  with  the  fine  ;  but  if  a  stranger  who  is 
not  of  my  name  levies  a  fine  of  my  laud  in  my  name,  I  shall  not  be 
received  to  aver  that  I  did  not  levy  the  fine,  but  another  in  my  name,  for 
that  is  merely  contrary  to  the  record  ;  and  so  it  is  of  all  reconusances  and 
other  matters  of  record." 

But  in  this  same  case,  the  Star  Chamber,  "there  being  then  in  court 
the  Lord  Keeper  [Egerton],  Popham,  Chief  Justice,  Gawdy,  one  of  the 
justices  of  the  Queen's  Bench,  and  Walmsley,  one  of  the  justices  of  the 
Common  Pleas,  and  divers  lords,"  punished  one  found  guihy  of  procuring 
the  personation  of  Alexander  Gellibrand  in  a  fine  of  his  lands,  and  ordered 
that  "  the  fine  levied  unto  him  should  be  void,  if  it  could  be  so  done,  by 
entering  a  vacat  upon  the  roll,  or  otherwise  as  the  justices  of  the  Com- 
mon Pleas  should  best  approve ;  and  if  it  cannot  be  so  made  void,  that 
then  Hubert,  by  fine  or  otherwise,  as  Alexander  Gellibrand  should  devise, 
should  reconvey  the  land  to  him  and  his  heirs  in  the  same  manner  as  it 
was  before,  or  at  the  time  levied."  Popham,  C.  J.,  thought  a  vacat  might 
be  entered,  avoiding  the  fine,  and  cited  "  the  case  of  one  Holcomb  "  where 
it  had  been  done.  The  date  of  this  last  case  was  not  given.  "  To  warrant 
this,  another  precedent  was  shown,  tempore  Hen.  6."  The  Lord  Keeper, 
after  making  the  remarks  quoted  above,  added  :  "  But  I  conceive  when 
the  fraud  appears  to  the  court,  as  here,  they  may  well  enter  a  vacat  upon 
the  roll,  and  so  make  it  no  fine,  although  the  party  cannot  avoid  it  by 
averment  during  the  time  that  it  remains  as  a  record. 

The  direct  defence,  or  "  averment,"  of  fraud  was  distinctly  ujiheld  in 
1601-1602,  in  Fermor's  case,  in  Chancery  (3  Co.  77;  s.  c.  2  And.  176, 
Jenk.  253),  where  a  lessee  for  years   had  levied  a  fine  of  the  lessor's 


408  LAW   OF  EVIDENCE. 

In  like  manner,  when  it  is  a  question  whether  a  writing, 
complete  in  point  of  form,  was  delivered  or  ever  took 
effect  as  a  contract,  deed,  or  will;  ^  whether,  if  it  did,  it  is 
voidable  for  fraud, ^  or  amendable  for  mistake;  ^  whether, 
under  a  written  contract,  you  can  set  up  a  substituted  time 
of  performance ;  *  whether,  in  case  of  a  deed  or  written 
transfer,  absolute  in  form,  you  can  show  that  it  was  given 
as  a  security  merely ;  ^  whether,  under  any  circumstances, 
an  indorser  of  negotiable  paper  in  blank  may  set  up  an  oral 

land.  The  Lord  Keeper  called  for  the  opinion  of  the  two  chief  justices  ; 
and  after  conference  between  them,  "  they  thought  it  necessary  that  all  the 
justices  of  England  and  barons  of  the  Exchequer  should  be  assembled  for 
the  resolution  of  this  great  case."  The  question,  as  Anderson's  report  tells 
us,  was  whether  the  plaintiff  was  barred  by  the  fine,  and  if  so,  whether  he 
could  have  relief  in  Chancery.  The  chief  justices  and  all  the  others 
agreed  that  the  fine  did  not  bar  the  plaintiff.  "  And  as  to  that  which  was 
objected,  that  it  would  be  mischievous  to  avoid  fines  on  such  bare  averments, 
it  was  answered  that  it  would  be  a  greater  mischief  ...  if  fines  levied  by 
such  covin  and  practice  should  bind." 

Such  a  determination  may  well  have  been  helped  by  the  practice  in 
Chancery  of  relieving  against  fraud  in  such  cases  by  ordering  a  reconvey- 
ance. A  case  of  that  sort  is  reported  as  of  May,  1.595  (Welby  v.  Welby, 
Tothill,  99  ;  1  Cruise,  Fines,  3d  ed.  349). 

Of  course,  in  allowing  new  defences  at  law  as  against  these  solemn  and 
sacred  assurances,  or  new  relief  in  equity,  the  substantive  law  of  fines  was 
changed;  and,  this  being  so,  it  followed,  as  a  mere  matter  of  course,  that 
the  new  matter  could  be  pleaded  and  proved. 

1  I'ym  V.  Campbell,  6  E.  &  B.  370;  Blewitt  v.  Boorum,  142  N.  Y.  3.57, 
an  interesting  case ;  per  Peckham,  J. 

2  Bariic*ly  v.  Powell,  1  Ves.  284  ;  State  v.  Cass,  52  N.  J.  Law,  77. 

3  Baker  v.  Paine,  I  Ves.  456  (1750) :  "  How  can  a  mistake  in  an  agree- 
ment be  proved,  but  by  parol  evidence  ?  "  —  Per  Lord  Ilardwicke.  Goode  v. 
Riley,  153  Mass.  585.  —  I^er  Holmes,  J.,  who  remarked  :  "  It  is  not  neces- 
sarily fatal  that  tlic  evidence  is  parol  which  is  relied  on  to  show  that  the 
contract  was  not  made  as  it  purports  on  the  face  of  the  document  to  have 
been  made.  There  was  a  time  wiicn  a  man  was  bound  if  liis  seal  was 
affixed  to  an  instrument  by  a  stranger,  and  against  liis  will.  But  the 
notion  that  one  who  has  gone  througli  certain  forms  of  this  sort,  even  in 
his  own  person,  is  bound  always  ami  unconditionally,  gave  way  long  ago 
to  more  delicate  conceptions." 

■•  Cnnimings  v.  Arnold,  3  Motcalf,  48(). 

^  Brick  ).'.  Brick,  98  U.  S.  514;  Campbell  v.  Dearborn,  109  Mass.  130. 


THE   "PAROL   EVIDENCE"   RULE.  401) 

agreement  tliat  he  was  not  to  be  under  the  usual  obliga- 
tions of  such  an  indorser;  ^'whether  a  principal  not  named 
is  bound  by  an  agreement  in  writing  made  by  his  agent, 
orally  authorized,  or  can  recover  on  it,  —  when  under 
seal  or  not  under  seal ;  "^  whether  and  how  far  you  can 
"annex  incidents"  orally  to  a  contract  in  writing;^  and 
whether  and  how  far,  after  an  agreement  in  writing,  you 
can  use  a  contemporaneous  oral,  "collateral,"  contract, 
as  it  is  called;^  —  all  these  questions,  and  many  more  of 
the  same  sort,  although  persistently  thrown  into  the  form 
of  whether  parol  evidence  be  admissible  for  such  purposes, 
really  present  no  point  in  the  law  of  evidence.  The  true 
inquiry  is,  whether  certain  claims  or  defences  be  allowable. 
If  relief  can  be  had  in  such  cases,  the  law  of  evidence 
has  nothing  to  say  as  to  any  kind  of  evidence,  good  under 
its  general  rules,  which  may  be  offered  to  prove  these 
things.  In  so  far  as  extrinsic  facts  are  a  legal  basis  of 
claim  or  defence,  extrinsic  evidence  is  good  to  prove 
them. 

7.  It  will  help  to  place  the  class  of  questions  now  under 
discussion  in  their  right  point  of  view  if  it  be  observed 
that  the  older  law  and  the  older  decisions  relating  to 
them,  were  often  mainly  concerned  in  keeping  matters 
out  of  the  hands  of  juries.     This  motive   appears  in  the 

1  Martin  v.  Cole,  104  U.  S.  30. 

2  Briggs  V.  Partridge,  64  N.  Y.  357.  "  It  is  .  .  .  difBcult,"  says  the 
court,  "to  reconcile  the  doctrine  here  stated,  with  the  rule  that  parol 
evidence  is  inadmissible  to  change,  enlarge,  or  vary  a  written  contract." 
This  form  of  expression  disguises  the  true  difficulty,  that  of  allowing  a 
recovery  or  a  liability  upon  facts  which  only  appear  extrinsically,  —  .i 
difficulty  in  point  of  substantive  law.  Once  get  over  that,  and  the  law 
of  evidence  interposes  no  obstacle. 

3  Brown  v.  Byrne.  3  El.  &  Bl.  703.  Compare  a  discussion  as  to  this 
sort  of  thing,  where  the  contract  was  oral,  in  Gilbert  v.  McGinuis,  114 
111.  28. 

*  Chapin  v.  Dobson,  78  N.  Y.  74;  Emmett  v.  Penoyer,  151  N.  Y.  564  ; 
Naumberg  r.  Young,  44  N.  J.  Law,  331.  The  last  case  puts  forward  a 
doctrine  which  appears  to  be  an  extreme  and  impracticable  one.  Com- 
pare Browne  on  Parol  Evidence,  c.  xii. 


410  LAW   OF  EVIDENCE. 

language  of  the  Statute  of  Fines,  ^  and  in  that  of  the  Lord 
Keeper  quoted  above, ^  and  it  seems  to  have  had  its  place 
in  bringing  into  existence  the  English  Statute  of  Frauds.' 
As  to  fines,  any  notion  that  absolutely  and  under  all 
circumstances  a  fine  or  any  other  matter  of  record  was 
beyond  attack,  belongs  to  a  ruder  period  of  jurispru- 
dence than  any  known  to  our  records;  always  there  was 
power  in  the  Crown,  or  "the  king  in  parliament,"  or  a 
regular  power  in  the  judges,  to  vacate  and  annul  such 
matters;*  and  when  these  things  could  be  done,  of  course 
the  evidence  was  receivable  which  was  necessary  in 
establishing  the  facts  upon  which  the  court  was  to  act. 
But  a  jury,  in  the  days  when  they  went  on  their  own 
knowledge  and  were  not  regularly  aided  by  testimony, 
when  the  doctrine  of  new  trials  had  not  developed,  and  the 
main  hold  upon  the  jury  was  through  the  attaint,  was  quite 
too  rude  a  tribunal  to  deal  with  this  sacredest  thing  in 
the  law.  It  would  have  been  preposterous  to  let  in  such  a 
body  to  revise  the  action  of  the  judges  in  making  record  of 
what  was  done  and  established  before  them.  Such  things 
seemed  less  intolerable,  as  time  went  on  and  jury  trial 
developed;  and,  accordingly,  modifications  of  the  rule 
came  in. 

It  is  an  entire  misconception  to  think  of  these  things  as 
involving  any  doctrine  in  the  law  of  evidence. 

III.  Something  has  already  been  said  of  interpre- 
tation and  construction.  A  great  part  of  the  space 
ordinarily  given  in  books  on  evidence  to  the  so-called 
"Parol  Evidence  Kule "  is  confusedly  occupied  by  this 
subject.^ 

'  Supra,  407  n. 

2  Gclliljraiul's  case,  .tupra,  407  n. 

8  Supra,  180. 

*  See  a  case  in  1220  (2  Bract.  Note  Book,  case  107),  long  before  the 
Statute  of  Fines,  where  a  collusive  fine  was  quaslied.  See  also  1  (7;.,  Index, 
sub  voc.  Deceit. 

6  "Perliaps,"  says  Stephen  (Dig.  Evid.,  note  to  Art.  91,  relating  to  the 


THE   "PAROL   EVIDENCE"  KULE.  411 

"The  construction  or  interpretation  of  written  con- 
tracts," says  Leake/  "consists  in  ascertaining  the  meaning 
of  tlie  parties  as  expressed  in  the  terms  of  the  writing, 
according  to  the  rules  of  grammar,  and  subject  to  the  rules 
of  law."  In  this  statement  two  or  three  things  should 
be  noticed,  namely,  that  no  distinction  is  made  between 
construction  and  interpretation;'^  that  the  process  is  said 
to  be  that  of  ascertaining  the  meaning  of  the  parties  so  far 
only  as  it  is  expressed  in  the  writing;  and  that  the  con- 
trolling authority  is  recognized  of  rules  of  language  and 
rules  of  law.  As  regards  these  controlling  rules  and  prin- 
ciples it  has  been  well  said:  "All  latitude  of  construction 
must  submit  to  this  restriction;  namely,  that  the  tvords 
Tnaij  hear  the  sense  which,  by  construction,  is  put  upon 
them.  If  we  step  beyond  this  line,  we  no  longer  construe 
men's  deeds,  but  make  deeds  for  them."^  Obviously,  this 
is  no  rule  of  evidence;  it  is  one  of  the  limitations  upon 
the  process  of  construction;  nor  does  it  change  the  real 
nature  of  this  limitation  when  courts  inadequately  express 
it  by  saying  that  "evidence  is  not  admissible"  to  prove 
what  is  thus  excluded.* 

To  say  that  the  words  must  be  capable  of  bearing  the 
sense  imputed  to  them,  is  to  recognize  that  there  must  be 
what  is  called  "a  sufficient  expression."  How  do  we  find 
out  whether  there  be  a  sufficient  expression  ?  Not  merely, 
in  case  of  a  real  question,  by  contemplating  the  words  of 
the  text;  but  also  by  comparing  them  with  persons,  facts, 
and  things  outside.     They  are  the  words  of  a  particular 

interpretation  of  documents),  "the  subject-matter  of  this  article  does  not 
fall  strictly  within  the  law  of  evidence." 

1  Dig.  Cont.  217. 

2  It  appears  that  neither  common  usage  nor  practical  convenience  in 
legal  discussions  supports  the  distinction,  taken  by  Dr.  Lieber  in  his 
"  Legal  and  Political  Hermeneutics  "  (c.  1,  §  8 ;  c.  3,  §  2),  between  inter- 
pretation and  construction.     I  shall  not  discriminate  them. 

3  Eyre,  C.  B.,  in  Gibson  v.  Minet,  1  H.  Bl.  p.  615  (1791) ;  cited  and 
applied  in  United  States  v.  U.  P.  R.  R.  Co.,  98  U.  S.  86, 

*  Black  V.  Batchelder,  120  Mass.  171. 


412  LAW  OF  EVIDENCE. 

person,  one  or  more;  and  the  question  is,  what  do  his  words 
mean  ?  what  is  the  meaning  of  the  words,  in  his  mouth  ? 
Whatever  technical  rules  there  be  for  construing  legal 
language,  whatever  legal  rules  for  construing  ordinary 
language,  -whatevev  piima  facie  rules  and  presumptions,  — 
these  must  all  be  allowed  their  proper  application;  and,  at 
the  end  of  it  all,  the  sound  judgment  of  the  trained  judi- 
cial mind,  and,  perhaps,  the  practical  experience  of  a  jury, 
must  be  appealed  to.  There  must  be  no  addition  to  the 
text  of  what  is  not  in  it.  But  when  is  a  thing  "in  it"  ? 
It  may  be  said  to  be  there  when  a  mind  fully  informed, 
and  doing  no  violence  to  the  rules  of  language  and  of 
legal  construction,  may  reasonably  find  it  there.  This 
question  is  discussed  by  Wigram  in  connection  with  his 
third  proposition;^  and  his  answer  is,  "The  court  .  .  . 
must  be  satisfied  .  •  .  ;  and  no  other  rule  can  in  the 
abstract  be  laid  down."  It  is  a  question  more  deeply 
considered  by  Hawkins,^  who  gives  the  same  answer. 

One  thing,  however,  is  certain,  and  it  is  excellently 
brought  out  by  Hawkins,  —  no  man  or  court  is  competent 
or  fully  equipped  for  dealing  with  this  question  who  has 
not  carefully  reflected  upon  the  nature  and  necessary 
imperfections  of  language,  and  of  all  written  expression. 
Such  a  person  in  approaching  the  question  will  remind 
himself  that  he  has  no  right  to  expect  more  of  written 
language  than  it  is  capable  of,  or  more  care  in  the  use  of 
it  than  fallible  creatures,  subject  to  time  and  accident,  can 
reasonably  supply.  For  a  consideration  of  this  aspect  of 
the  subject  I  must  refer  the  reader  to  the  discussion  above 
referred  to.  V>y  leave  of  the  learned  author,  I  have  in- 
serted it  in  an  appendix.*  He  has  well  pointed  out  that 
owing  to  these  imperfections  of  language,  to  the  facts  that 
it  is  not,  in  itself,  a  perfect  "code  of  signals,"  and  that  it 
is  not  used  with  ])erfect  accuracy,  there  arises  a  necessity 

1  Extrina.  Ev.  pi.  120-12!). 

2  Princ.  of  Logal  Iiitorp.,  2  Jurid.  Soc.  ra])er.s,  298 ;  infra,  .577. 
•  Infra,  577. 


THE   "PAROL   EVIDENCE"   RULE.  413 

to  look  for  other  indications  of  intention,  outside  the  text. 
"Interpretation,"  he  says,  "  is  a  collecting  of  the  intent 
from  all  available  signs  or  marks,  and  an  inquiry  into  the 
existence  of  a  sufficient  expression  of  that  intent  in  the 
single  set  of  signs  called  language.  .  .  .  The  possibility 
of  proceeding  in  the  inquiry  after  the  writer's  meaning 
beyond  the  point  at  which  the  meaning  of  the  words  fails, 
is  dependent  on  the  assumption  that  a  perfect  written 
expression  is  not  essential  to  the  legal  validity  of  the 
writing.  ...  A  law  .  .  .  which  enjoined  a  perfect 
written  expression,  would  be  impossible  to  be  obeyed,  and 
the  command  which  gives  rise  to  the  necessity  of  the  lat- 
ter, in  a  legal  writing,  must  be  interpreted  according  to 
its  spirit.  .  .  .  The  question  ...  is  not  what  the  writer 
meant,  but  what  he  has  authorized  the  interpreter  to  say 
it  is  probable  was  his  meaning.  But  if  there  be  a  total 
absence,  not  merely  of  intent,  but  of  indicia,  of  marks  or 
signs  from  which  it  is  reasonably  to  be  collected,  .  .  . 
it  is  clear  the  process  of  interpretation  must  stop  for  want 
of  materials.  ...  The  meaning  of  the  words  ...  is 
important  in  two  ways:  as  a  sign  of  the  intent,  and  as  a 
condition  necessary  to  the  legal  validity  of  the  writing. 
As  a  sign  of  the  intent,  it  has  yielded  so  far  as  to  admit 
of  other  marks  or  signs  being  combined  with  it;  as  a  legal 
requirement,  its  necessity  remains.  .  .  .  [Interpretation 
is]  a  process  of  reasoning  from  probabilities,  a  process  of 
remedying  by  a  sort  of  equitable  jurisdiction,  the  imper- 
fections of  human  language  and  powers  of  using  lan- 
guage, a  process  whose  limits  are  necessarily  indefinite, 
and  yet  continually  requiring  to  be  practically  determined; 
—  and  not  ...  a  mere  operation  requiring  the  use  of 
grammars  and  dictionaries,  a  mere  inquiry  into  the  mean- 
ing of  words." 

Among  these  extrinsic  facts,  these  outward  "marks 
and  signs,"  from  which,  as  thus  explained,  in  connection 
with  the  words  of  the  document,  and  not  from  these 
words  alone,  the  intention  embodied  in  the  written  ex- 


414  LAW  OF  EVIDENCE. 

► 

pression   is   to   be   collected,    there   is   one    thing    which 

cannot,  under  our  law,  be  used,  namely,  extrinsic  expres- 
sions of  the  writer  as  to  his  intention  in  the  writing. 
This  is  usually  and  rightly  regarded  as  an  excluding  rule 
of  evidence. 

Of  this  single  limitation  upon  the  free  and  full  range 
among  extrinsic  facts,  in  aid  of  interpretation,  the  writer 
from  whom  I  have  just  quoted  points  out,  as  others  have 
done,  that  it  does  not  rest  upon  any  lack  of  materiality 
and  probative  value  in  such  direct  statements  of  intention, 
but  upon  the  impolicy  and  danger  of  using  them.  After 
mentioning  that  the  preamble  of  a  statute  is  constantly 
referred  to  in  aid  of  the  interpretation  of  the  enactment, 
he  neatly  adds,  that  this  fact  "would,  one  should  have 
thought,  have  prevented  its  ever  being  supposed  that  in- 
tention, qua  intention,  was  a  matter  with  which  the  inter- 
preter had  no  business  to  concern  himself."^  Of  course, 
as  was  just  said,  there  are  reasons  for  rejecting  such  ex- 
trinsic expressions;  and  yet  in  other  systems  of  law  they 
are  not  wholly  rejected,  but  only  "subjected  to  severe 
scrutiny." 

Let  us  trace  the  development  and  illustrate  the  charac- 
ter of  some  of  these  matters  in  the  case  of  wills.  In  so 
far  as  it  was  true,  before  and  afber  the  Statute  of  Wills, 
in  1540,2  ^2X  writing  was  not  legally  necessary  to  a  will, 
no  doctrine  about  writings  had  any  necessary  application 
to  these  dispositions  of  property.  Doubtless,  wills  very 
often  were  in  writing,  when  this  form  was  not  legally 
necessary;  and  then,  of  course,  there  was  scope  for  such 
a  doctrine.^  The  Statute  of  Wills,  in  allowing,  generally, 
a  devise  of  lands,  required  writing,  but  it  did  not  require 

1  2  .Juriil.  Soc.  314;  infra,  591. 

2  Stat.  32  li.  VIII.  c.  1  ;  and  (•(.iiqiaro  Stat.  34  &  3.5  II.  VIII.  c.  5 
(1542-1543). 

'  Ah  regards  the  earlier  usages  in  the  in.attcr  of  putting  wills  in  writing, 
Bee  1  Swinh.  Testaments,  ii.  .5  ;  2  Rlack  IJook  Adm.  71  ;  Y.  B.  20  &  21 
Edw.  I.  2C.4  ;  1  Calendar  of  Wills,  London  Court  of  llusting,  lutroductiou, 
pp.  xiiv,  xlv,  ami  jxtssim. 


THE   "PAROL   EVIDENCE"   RULE.  415 

signature.'  The  Statute  of  Frauds  (§  5),  in  1676,  in  the 
case  of  wills  of  real  estate,  added  the  requirements  of 
signature  and  attesting  witnesses;  but  as  to  personalty 
(§§  19-23),  it  required  no  more  than  writing.  It  was  not 
until  the  "Wills  Act,"  in  1837,^  that  the  same  formalities 
were  necessary,  in  England,  for  all  wills. 

1.  In  1568,^  where  a  man  had  devised  land  to  his  nephew, 
and  the  nephew  died,  leaving  a  son,  and  the  testator 
thereafter  orally  told  the  son  that  he  should  have  all  which 
the  will  had  given  his  father,  it  was  held  that  the  son 
took  nothing.  "All,"  said  the  court,  "that  can  make  the 
devise  effectual  ought  to  be  in  writing.  .  .  .  No  will  is 
within  the  statute  but  that  which  is  in  writing;  which 
is  as  much  as  to  say  that  all  which  is  effectual  and  to 
the  purpose  must  be  in  writing,  without  seeking  aid  of 
words  not  written."  In  1587,^  where  one  had  left  land 
to  the  heirs  of  the  body  of  his  eldest  son,  and  if  he  die 
without  issue,  to  his  two  daughters  in  fee ,  —  on  the  death 
of  the  testator,  the  eldest  son  was  living,  and  also  a  son 
of  his,  who  was  tenant  in  the  action.  The  defendant's 
witnesses  swore  to  declarations  of  the  testator  that  the 
daughters  were  to  have  nothing  so  long  as  the  eldest  son 
had  issue  of  his  body ;  "  but  the  court  utterly  rejected  the 
matter." 

2.  In  a  famous  case,  in  1591,^  there  was  a  question  upon  a 

1  See  a  case  in  Keilwey,  209,  pi.  9  (1557-1558),  where  one  Atkius, 
being  called  to  prepare  a  last  will  for  Henry  Browne,  took  full  notes, 
carried  them  home,  and  wrote  out  the  will,  finishing  it  before  tweh-e 
o'clock  at  noon.  On  carrying  this  to  Browne's  house  to  read  and  deliver 
it  to  him,  within  half  an  hour  after  twelve,  he  found  that  the  testator 
liad  died  at  twelve.  "  The  clear  opinion  of  all  the  justices  was  that  this 
was  a  good  will  in  writing,  made  according  to  the  statute  of  the  year  32 
H.  VIII."  In  like  manner,  to-day,  undoubtedly,  there  exists  a  contract 
in  writing,  if  the  parties  so  arrauge,  without  signature.  Blackburn,  Sale, 
1st  ed.  4.3,  44. 

2  Stat.  1  Vict.  c.  26,  §  9. 

8  Brett  V.  Rigdon,  Plowd.  340. 

*  Challoner  v.  Bowyer,  2  Leon.  70. 

^  The  Lord  Cheyuey's  case,  5   Co.  68.    In  the  statement  of    this 


416  LAW  OF  EVIDENCE. 

devise  by  Sir  Thomas  Cheyney,  made  in  1558-9,  to  his  son 
Henry  and  the  heirs  of  his  body,  remainder  to  Thomas 
Cheyney  of  Woodley  and  the  heirs  male  of  his  body,  on 
condition  "that  he  or  they,  or  any  of  them,  sliall  not  alien, 
discontinue,"  etc.  In  the  Court  of  Wards  the  question 
was  whether  this  condition  extended  to  the  son  of  the 
devisor  and  his  heirs,  or  only  applied  to  Thomas  Cheyney 
of  Woodley  and  his  heirs.  This  sort  of  question  was  an 
old  one.^  As  against  those  claiming  tinder  Henry,  the 
question  was  whether  the  opposing  party  "should  be 
received  to  prove  by  witnesses  that  it  was  the  intent  and 
meaning  of  the  devisor  to  include  his  son  and  heir  within 
these  words  of  the  condition  (he  or  they),  .  .  .  but  Wray 
and  Anderson,  Chief  Justices,  on  conference  had  with 
other  justices,  resolved  that  he  should  not  be  received  to 
such  averment  out  of  the  will,  for  the  will  concerning 
lands,  etc.,  ought  to  be  in  writing,  and  tlie  construction  of 
wills  ought  to  be  collected  from  the  words  of  the  will  in 
writing,  and  not  by  any  averment  out  of  it;  for  it  would 
be  full  of  great  inconvenience  that  none  should  know  by 
the  written  words  of  a  will  what  construction  to  make  or 
advice  to  give,  but  it  should  be  controlled  by  collateral 
averments  out  of  the  will." 

The  reader  will  observe  the  reasons  here  given,  namely, 
as  wills  of  land  must  be  in  writing,  so  the  construction  of 
them  must  be  collected  from  the  written  words,  and  not  by 
any  averment  outside  of  them;  —  since  people  should  be 
able  to  understand  and  give  advice  upon  wills  from  the 
written  words.  This  offer  is  not  conceived  of  as  in  the 
earlier  cases,  just  cited,  as  putting  forward  extrinsic  matter 
which  is  contrary  to  the  words  of  the  will,  or  which  adds 
to  them,  and  asking  to  have  effect  given  to  it  as  if  it  were 

caHO  ill  Mduro,  727,  the  rojjort  is  moro  (l(^tail(!(l,  iiioro  iiit,(!llii;il)lo,  and 
a])])ar(!iilly  iiioro  accurate ;  l)ut  tlio  decision  is  not  f^iven.  Coke's  re- 
])ort,  for  tlio  jJurpoHOH  which  he  has  iu  hand,  appears  to  be  substantially 
accnrato. 

1  Infra,  42.'i  and  note, 


THE  "PAROL  EVIDENCE"  EULE.  417 

duly  written  out  as  a  will;  but  as  offering  it,  in  aid  of 
construction,  in  a  case  where  a  will  uses  words  which, 
on  their  face,  admit  of  either  application,  yet  fix  upon 
neither.  It  should  be  observed  that  we  do  not  know  just 
how  this  question  came  up;  all  that  is  said  in  either 
report  is  that  "it  was  a  question."  Nor  are  we  told  what 
the  facts  were  which  were  offered  in  order  to  prove  "  the 
intent  and  meaning."  But  the  subsequent  discussion  seems 
to  identify  the  offer,  in  legal  effect,  with  that  of  direct 
statements  of  intention ;  for,  as  contrasted  with  this  case,  it 
is  presently  said,  that  in  equivocation  of  names,  "  he  may 
produce  witnesses  to  prove  his  father's  intent,  —  that  he 
thought  the  other  to  be  dead,  or  that  he,  at  the  time  of  the 
will  named,  named  his  son  John  the  younger,  and  the 
writer  left  out  the  addition  of  the  younger."  It  is  also  to 
be  observed  that  the  judges  identify  the  question  of  evi- 
dence with  that  of  pleading;  it  is  "an  averment  out  of  the 
will"  that  is  bad,  i.  e.,  an  allegation  in  pleading.  To  say 
that  you  cannot  have  an  averment  of  facts  is  to  say  that 
you  cannot  have  an  issue  on  it,  you  cannot  go  to  the  jury 
on  it.  Here,  the  question  being  whether  the  party  "  should 
be  received  to  prove  by  witnesses "  the  intent  of  the 
devisor,  the  answer  is  that  he  cannot,  because  he  may  not 
have  such  an  averment,  i.  e.,  he  cannot,  in  such  a  case, 
found  any  claim  on  the  intent.  We  may  observe,  then, 
that  the  difficulty  is  not  conceived  of  as  one  in  the  law  of 
evidence,  —  as,  indeed,  we  might  be  pretty  sure  it  would 
not  be,  at  so  early  a  period. 

But  there  is  more  in  this  report.  It  became  necessary 
to  discriminate  that  exceptional  case  above  alluded  to, 
familiar  in  all  systems  of  law.  For  centuries  there  had 
arisen  certain  familiar  questions  of  ambiguity.  In  matters 
of  record,  in  specialties,  and  in  other  writings,  there  had 
often  been  occasion  to  deal  with  the  problem  of  a  name  or 
description  equally  fitting  two  or  more  persons,  places,  or 
things.  The  wrong  man  having  the  right  name  was  often 
in  trouble.     He  had  been  arrested  and  brought  into  court 

27 


418  LAW  OF  EVIDENCE. 

on  an  exigent  in  outlawry;  or,  in  the  case  of  a  fine  or  a 
common  recovery,  he  had  had  his  land  claimed  by  another; 
or  he  was  sued  on  a  bond  given  by  another;  or  himself 
claimed  a  devise  intended  for  another.  These  situations 
and  the  like  are  familiar  all  through  the  Year  Books. ^ 
The  doctrine  has  already  been  mentioned  ^  that  although,  if 
a  man  were  to  levy  a  fine  on  my  lands  in  my  name,  I  should 
lose  my  laud,  yet  if  there  were  two  of  my  name  "  I  can 
show  that  I  am  not  the  person,  but  that  there  is  another." 
Under  such  circumstances  one  of  the  persons  could  be  sub- 
tracted from  the  operation  of  the  fine,  because  this  still  left 
it  operative  upon  another;  this  averment  could  "stand  with 
the  words."  Long  before  that,  the  civilians,  also,  like  the 
dramatists,  had  sharpened  their  wits  upon  complicated 
imaginary  mischances  of  such  personages.  For  example, 
a  scholastic  question  was  put  forward  thus:  There  were 
two  brothers,  of  the  same  name,  and  extraordinarily  like 
each  other.  Each  begat  a  boy,  so  like  his  cousin  that 
neither  of  the  fathers  knew  them  apart;  they  had  the  same 
name,  and  each  was  loved  and  treated  as  his  own  by  both 
fathers.  By  and  by,  both  boys  went  to  Bologna  as  stu- 
dents ;  one  died  there :  both  the  fathers  died ;  the  surviving 
boy  returned  home  and  laid  claim  to  the  inheritance  of 
both  the  fathers,  as  having  reckoned  each  of  them  to 
be  his  own,  and  having  been  treated  by  each  as  his 
son.  The  (question  was  whether  he  could  have  both  in- 
heritances, or  neither,  or  either  one.  The  matter  is  dis- 
cussed at  length  all  ways,  and  finally  it  is  resolved  thus: 
As  a  matter  of  strict  law  he  can  have  neither,  because  he 
does  not  clearly  make  out  his  claim.  lint  on  equitable 
grounds  he  shall  liave  that  inheritance  which  seems  most 
likely  to  be  liis." 

1  Wiilter  lirumie's  case,  PI.  Ab.  280,  col.  1  (1287) ;  Fitz.  Ab.  Feff.  56; 
8.  c.  47  Kd.  III.  IG,  2'.>  (137.J);  Y.  B.  11  II.  VI.  i:?  (14;52);  Coteler  r.  Hall, 
5  E(i.  IV.  (Loiifr  Quint)  40  b,  140.') ;  s.  c.  lb.  48  b,  54  b,  74  b,  80  b,  90,97  b, 
and  Y.  B.  5  Ed.  IV.  6,  G  ;  Y.  H.  11  II.  VII.  G,  4'(149G). 

2  Sujira,  407  ii. 

*  Azo,  QucLslioncs,  cd.  Laiidsburg  (Freiburg,   1888),  38-44,  II.     Azo, 


THE  "PAROL  EVIDENCE"  RULE.  419 

The  established  doctrine  in  our  law,  in  this  class  of 
cases,  was  that  the  intention  should  govern.  Clearly, 
only  one  person  or  thing  was  intended.  Either  one  was 
adequately  described  if  taken  alone,  but  neither  was  dis- 
criminated; an  infirmity  in  the  written  expression  left  it 
uncertain  which  was  meant.  This  was  a  strait  from  which 
there  was  no  outlet;  unless,  indeed,  you  looked  beyond  the 
paper,  and  gave  effect  to  extrinsic  matter  in  aid  of  con- 
struction. So  far,  therefore,  as  men  dreamed  of  interpret- 
ing records  or  any  other  writings  without  using  extrinsic 
matter  as  a  lamp  to  read  them  by,  here  was  a  situation 
that  forever  tended  to  undeceive  them.^ 

it  will  be  remembered,  was  a  famous  professor  of  law  at  Bologna,  at  the 
beginning  of  the  thirteenth  century,  and  the  source  of  much  that  is  found 
in  Bracton  ;  as  may  be  seen  in  Maitland,  Select  Passages  from  Bracton  and 
Azo ;  being  vol.  viii.  of  the  Selden  Society  Publications. 

1  There  were  other  provocations  in  the  same  direction.  It  was  clearly 
recognized  in  slander,  whether  written  or  oral,  that  the  meaning  of  words 
may  depend  upon  the  circumstances  under  which  they  are  uttered.  In 
1577  (the  Lord  Cromwell's  case,  4  Co.  Rep.  11  b,  "the  fir.st  cause  which 
the  author  of  this  book,  who  was  of  counsel  with  the  defendant,  moved  in 
the  King's  Bench"),  the  court  is  reported  as  saying  that  "in  case  of 
slander  by  words,  the  sense  of  the  words  ought  to  be  taken,  and  the  sense 
of  them  appears  by  the  cause  and  occasion  of  speaking  of  them.  .  .  .  The 
defendant's  counsel  have  done  well  to  show  the  special  matters  by  which 
the  sense  of  this  word  (sedition)  appears  upon  the  coherence  of  all  the 
words."  And  Coke  goes  on  to  tell  his  reader  to  note  "  an  excellent  point 
of  learning  in  actions  for  slander,  to  observe  the  occasion  and  cause  of 
speaking  of  them,  and  how  it  may  be  pleaded  in  the  defendant's  excuse," 
and  to  beware  of  a  hasty  demurrer  in  such  cases. 

In  contracts,  also,  it  was  always  recognized  tliat  familiar  words  may 
have  different  meanings  in  different  places,  so  that  "  every  bargain  as  to 
such  a  thing  shall  have  relation  to  the  custom  of  the  country  where  it  is 
made"  (Keilwey,  87,  3,  in  the  Ex.  Ch.  in  1505).  In  Baker  v.  Paine, 
1  Ves.  p.  459  (1750),  Lord  Hardwicke,  in  a  mercantile  case  of  sale,  re- 
marked: "All  contracts  of  this  kiud  depend  on  the  usage  of  trade.  .  .  . 
On  mercantile  contracts  relating  to  insurances,  etc.,  courts  of  law  examine 
and  hear  witnesses  of  what  is  the  usage  and  understanding  of  merchants 
conversant  therein  ;  for  they  have  a  style  peculiar  to  themselves,  which  is 
short,  yet  is  understood  by  them,  and  must  be  the  rule  of  construction." 
The  development  of  the  mercantile  law  by  the  use  of  special  juries  in 
volved  a  recognition  of  these  same  ideas. 


420  LAW   OF  EVIDENCE. 

Coke,  in  his  report  of  the  Lord  Cheyney's  case,  after 
what  is  stated  above,  goes  on  to  deal  with  this  old,  familiar 
instance:  "But  if  a  man  has  two  sons,  both  baptized  by  the 
name  of  John,  and  conceiving  that  the  elder  (who  had 
been  long  absent)  is  dead,  devises  his  land  by  his  will  in 
writing  to  his  son  John  generally,  and  in  truth  the  elder 
is  living;  in  this  case  the  younger  son  may,  in  pleading 
or  in  evidence,  allege  the  devise  to  him,  and  if  it  be  denied, 
he  may  produce  witnesses  to  prove  his  father's  intent, 
that  he  thought  the  other  to  be  dead;  or  that  he  at  the 
time  of  the  will  made,  named  his  son  John  the  younger, 
»and  the  writer  left  out  the  addition  of  the  younger;  for  in 
47  Ed.  3,  16  b,"  etc.;  —  and  then  he  cites  a  famous  case 
of  two  William  Peynels,  in  1373,  and  discriminates  such 
cases  on  the  ground  that  they  involve  no  "  secret,  invisible 
averment."  "He  who  sees  the  will  .  .  .  ought  at  his 
peril  to  inquire  which  John  the  testator  intended,  which 
may  easily  be  known  by  him  who  wrote  the  will,  and 
others  who  were  privy  to  his  intent."  But  if  the  intent 
be  not  ascertainable,  the  will,  we  are  then  told,  is  void 
for  uncertainty;  since  the  law  makes  no  construction  in 
favor  of  either,  giving  it  to  him  whom  the  father  intended, 
"and  for  want  of  proof  of  such  intent  the  will  ...  is 
void."i 

1  In  the  Year  Book  from  which  Coke  cites  it,  this  ca?e  is  reported 
substantially  as  follows  :  "  William,  son  of  Robert  Peynel,  brings  a  Scire 
Facias  on  a  fine  levied  between  tliis  Robert  and  others,  by  which  ...  [a 
manor  was  granted  and  rendered]  to  this  same  Robert,  and  William ;  and 
'  the  younger  son  sues  the  issue  of  tlie  eldest  son.  Fulthorp  (for  the  defend- 
ant) told  how  the  remainder  was  tailed  to  his  father  .  .  .  and  Robert 
died,  and  his  father  entered  and  died  seised,  and  he  is  now  in  as 
heir.  Ilastji  (for  the  plaintiff)  saiil  that  the  fine  was  levied  to  the  intent 
to  give  the  inheritance  to  him,  and  therefore  the  part  of  the  fine  was  de- 
livered to  him  l)y  his  fatlier  Robert  at  the  time  of  his  death,  —  making 
protestation  that  ln'  <liil  not  acknowledge  that  there  was  any  such  William, 
oldest  son  of  I{ol)crt,  or  that  ho  survived  iiis  father,  or  was  seised  ;  for  he 
died  in  l{ol)f>rt's  lifctinio.  rvNciiKDiON  (C.  J.).  Tliis  is  only  evidence  :  it 
cannot  makf?  an  issue  in  law  or  fact,  wlicthor  the  fine  was  levied  to  the 
intent  of   giving  tiio   iulioritauce   to   one  or  to  the  other.    Hasty  then 


THE   "PAROL  P:VIDENCE»  RULE.  421 

This  problem  and  this  sohition  of  it  were  also  found  in 
the   Koman  law.     In  the   Digest   we   read   a  response  of 

said  that  the  fiue  was  levied  to  give  the  inlieritance  to  him,  —  making  pro- 
testation as  before.  Fersey  (for  the  defendant),  the  fine  was  levied  to 
give  tlie  inheritance  to  our  father." 

Brooke  in  giving  this  case  (Abr.  Fines,  28,  and  Nosme,  63),  notwitli- 
stauding  what  i.s  said  in  the  report,  adds  to  his  memorandum  of  it :  "  And 
so  see  an  issue  on  the  intent;  and  see  12  H.  VII.  6,  that  where  a  man  has 
manors  of  upper  S.  ami  Lower  S.,  and  levies  a  fine  of  the  manor  of  S.,  it 
shall  be  taken  as  that  manor  of  the  two  about  which  they  conferred  and 
had  conversation,  and  which  the  conusor  intended  to  pass.  .  .  .  The 
intent  shall  be  taken ;  that  is,  the  manor  shall  pass  which  the  conusor 
intended  should  pass." 

Fitzherbert's  account  of  it  (Feff.  56)  is  taken  from  another  report. 
W.  here  figures  as  the  son  of  R.  H.  "  Ham.  {semble,  Hannemere).  He 
shall  not  have  execution,  for  R.  H.  had  a  son  older  than  you,  named  W., 
wlio  was  our  father,  and  there  was  a  talk  between  J.  and  R.  H.  that  W. 
the  oldest  son  should  marry  J.'s  daughter,  and  the  remainder  be  tailed  to 
our  father,  the  oldest,  according  to  the  purport  of  the  fine  ;  and  there- 
upon the  fine  was  levied,  and  then  R.  died,  and  our  father  entered,  and 
died  seised,  and  we  entered  as  heir.  Hasty  (for  the  plaintiff).  The 
fine  was  levied  to  the  intent  that  we  should  inherit,  and  thereupon 
R.  H.  at  the  time  of  his  death  delivered  us  a  part  of  the  fine.  Fyncheden 
(C.  J.).  You  shall  not  take  issue  on  the  intent,  for  the  intent  does  not  lie 
in  averment.  But  if  I  lease  land  for  life,  remainder  to  one  W.  T.  by  fine, 
and  there  are  two  W.  T.'s  in  the  country,  I  say  that  he  who  first  happens 
upon  the  remainder  shall  not  keep  it  against  the  other,  if  he  cannot  prove 
that  the  remainder  was  tailed  to  him  by  his  name,  and  that  he  was  the 
same  person.  Belknap.  We  understand  that  if  the  remainder  be  tailed 
to  W.  T.,  and  there  be  two  W.  T.'s,  father  and  son,  the  father  shall  have 
it.  Fyncheden.  He  to  whom  the  remainder  is  tailed  shall  have  it,  and 
no  other."  The  reporter  adds :  "  Hasfi/,  because  of  the  court's  opinion, 
said,  the  remainder  was  tailed  to  us  as  the  fine  purports.  Ready.  Ham. 
It  was  tailed  to  our  father,  and  not  to  you.     Ready.     Ft  alii  e  contra." 

It  may  be  surmised  that  Brooke  misconceives  this  case.  The  court 
seems  clearly  to  refuse  an  issue  upon  intention,  and  puts  the  matter  solidly 
on  the  question,  so  far  as  the  pleading  goes,  "  Who  is  it  that  the  docu- 
ment calls  for  ?  "  The  court  at  that  period  (1373)  is  not  troubling  itself 
as  to  how  the  jury  is  going  to  deal  with  the  question.  Doubtless,  if  they, 
or  any  of  them,  should  happen  to  have  tidings  of  any  declarations  of  the 
writer,  these  would  have  their  full  natural  effect  in  influencing  the  verdict. 
As  to  putting  evidential  matter  into  the  pleadings,  and  why  you  should 
insert  it  there,  and  how,  and  how  much,  —  a  century  and  a  half  of  curious 


422  LAW   OF   EVIDENCE. 

Paulus,  at  the  beginning  of  the  third  century  of  our  era: 
Duo  sunt  Titli,  pater  et  filius ;  datus  est  tutor  Titius,  nee 
apparet  de  quo  sensit  testator.  Quaero,  quid  sit  juris  ? 
Hespondit,  is  datus  est  quern  dare  se  testator  sensit.  Si  id 
71071  apqjaret,  nan  jus  deficit,  sed  prohatio.  lyitur  neuter 
est  tutor. '^  At  about  the  same  period,  or  a  little  earlier, 
from  Ulpian  we  have  this :  Quod  vero  quis  obscurius  in 
testamento  vel  Tiuncupat,  vel  sci'ibit,  an  pjost  sole7nnia 
explanare  possit,  quae7ntur  ;  7it  puta  Stichum  [the  name  of 
a  slave]  legaverat,  quumplui^es  haberet,  nee  declaravlt  de  quo 
sentiret ;  Titio  legavit,  quu7n  multos  Titios  amicos  haberet ; 
erraverat  in  7io7nine,  vel  2yraenomi7ie,  vel  cognoTnine,  quum, 
in  corpore  no7i  errasset ;  jJoteritne  j^ostea  declarai^e,  de  quo 
se7iserit?  Et  puto,  posse  ;  nihil  enini  mmc  dat,  sed  dattim 
significat.^  In  the  last  passage,  the  difference  between  the 
Koman  law  and  ours  will  be  observed.  The  question  is 
there  treated  as  a  general  one,  and  what  is  allowed  in  cases 
of  equivocation  is  good,  also,  in  case  of  any  ordinary  error 
of  description. 

3.  It  was  probably  a  little  later  than  Cheyney's  case* 
when  Bacon  wrote  his  Maxim  25  (sometimes  23),  to 
the  effect  that  where  an  ambiguity  in  a  writing  is  made 
apparent  only  by  what  is  extrinsic  to  the  writing,  you 
may  correct  it  by  extrinsic  matter;  Ambiguitas  verhorum 
latens  ve7'ificatio7ie  suppletur ;  nam  quod  ex  facto  07'itur 
ambiguum  verificatione  toUitur.  This  maxim,  like  the 
language  in  Coke's  report,  imports  that  some  inquiry  into 
extrinsic  facts  is  necessary.  That,  to  be  sure,  is  obvious 
enough,  for  wills  and  deeds  talk  about  extrinsic   things, 

and  important  discussion  {supra,  114-119)  had  been  f^oing  on  in  the 
courts  between  the  date  of  this  case  and  the  writing  of  Brooke's  Abridg- 
ment. Long  before  Brooke's  time,  as  it  seems,  it  liad  come  to  be  allowed 
that  you  could  have  "an  averment"  of  intention  in  such  a  case  as 
I'eynel's;  but  at  the  date  of  that  case  it  was  otherwise. 

'  Dig.  xxvi.  2,  30. 

2  Dig.  xxviii.  2,  21. 

"  Not  later  than  l.'iOG-O?.  See  preface  to  Bacon's  Maxims,  first 
published  in  1G29  or  1G30. 


THE   "PAROL   EVIDENCE"   RULE.  423 

and  these  have  to  be  identified;^  but  it  was  not  always 
remembered.  The  maxim  appears  to  have  been  wholly 
Bacon's  own;  it  was  well  on  towards  two  centuries  before 
the  profession  took  it  up.  It  is  likely  enough  that  Lord 
Cheyney's  case  suggested  it.  The  intuitus  of  it,  and  the 
state  of  professional  opinion  to  which  it  was  addressed, 
may  be  appreciated  if  one  observes  the  amazing  pedantry 
of  legal  discussion  in  those  days,  in  cases  where  the  con- 
struction of  writings  was  in  question;  e.  g.,  in  the  famous 
case  of  the  Surrey  Hospital. - 

Bacon  seems  to  have  invented  the  phrases  amhiguitas 
latens  and  amhif/uitas  patens.  Quite  in  the  way  of  the 
conceptions  of  that  time,  he  says  that  an  ambiguity  which 
appears  in  the  writing  itself  can  only  be  cured  by  the  writ- 
ing itself;  i.  e.,  by  merely  construing  the  writing,  or,  in 
some  cases,  —  as  where  one  who  has  a  hundred  acres  gives 
ten  acres,  — by  allowing  to  the  donee  the  choice.  He  puts 
the  case  of  giving  land  to  I.  D.  and  I.  S.  et  haeredihus,^ 
without  saying  whose  heirs,  and  then  the  question  in 
Cheyney's  case,  and  adds  that  this  sort  of  thing  *'  cannot 
be  holpen  by  averment,"  "  for  that  were  to  make  all  deeds 
hollow  and  subject  to  averments,  and  so,  in  effect,  that  to 
pass  without  deed  which  the  law  appointeth  shall  not  pass 
but  by  deed."  This  he  is  careful  to  make  applicable  to 
wills  as  well  as  deeds  :  "  So  if  a  man  give  land  in  tail, 
though  it  be  by  will."  With  this  sort  of  obvious  and  in- 
curable ambiguity,  he  contrasts  the  latent  and  curable  kind, 

1  "  Tn  every  case  the  words  used  must  be  translated  into  things  and 
facts  by  parol  evidence."  Holmes,  J.,  in  Doherty  v.  Hill,  144  ALass. 
p.  468. 

2  Fanshawe's  case,  Moore,  228  (1588),  in  the  Exchequer  of  Pleas;  s.  c. 
in  Excb.  Chamb.  (1588-1589),  sub  nam.  Mariot  v.  Mascal,  Anderson,  202; 
and  sub  vmn.  Mariot  v.  Pascall,  1  Leon.  159. 

3  ''  Nofa  that  it  is  said  by  my  Lord  Hussey  [C  J.  K.  B.  1481-1495] 
that  if  land  be  given  to  two  et  haeredibus,  they  have  only  an  estate  for 
life ;  for  it  is  not  certain  to  whom  the  inheritance  is  limited."  Keilwey, 
108,  26.  This  was  a  commonplace.  See  Altliani's  case,  infra,  and  Mir- 
rill  V.  Nichols,  2  Bulst.  176.     Compare  Castledon  i'.  Turner,  3  Atk.  257. 


424  LAW  OF  EVIDENCE. 

such  as  had  been  discriminated  "n  Cheyney's  case;  namely, 
the  old  instance  of  two  things  or  persons  of  the  same  name. 
There,  he  says,  since  the  writing  is  clear  upon  its  face, 
and  the  ambiguity  only  appears  extrinsically,  you  may 
remedy  it  extrinsically,  and  even  by  averring  the  actual  inten- 
tion of  the  writer,  since  the  form  of  the  writing  really  does 
describe  the  thing  or  person  intended.  And  then,  fancifully, 
he  speaks  of  another  sort  of  amhiguitas  latens,  where  the 
same  person  or  thing  is  designated  by  different  names,  and 
allows  an  averment  of  some  extrinsic  matter  here,  such  as 
goes  to  identify  the  person  or  thing,  but  not  an  averment 
of  intention,  since  the  intention  "doth  not  stand  with  the 
"words." 

In  Edward  Altham's  case/  in  1610,  these  distinctions 
are  gone  over  again;  but  the  word  "ambiguity,"  patent  or 
latent,  does  not  occur,  and  there  is  no  sign  of  any  knowl- 
edge of  Bacon's  phrases.  A  case  of  equivocation  in  a  fine 
is  stated,  and  an  averment  of  intention.  "  This  averment 
out  of  the  fine  is  good,  .  .  .  which  well  stands  with  the 
words."  But  (citing  Year  Book  cases)  a  gift  to  one  of  the 
sons  of  J.  S.,  who  has  divers,  and  a  limitation  to  two  et 
haeredihus,  are  uncertain  and  void  by  judgment  of  law, 
"  and  no  averment  dehors  can  make  that  good  which  upon 
consideration  of  the  deed  is  apparent  to  be  void." 

Bacon's  maxim  was  an  unprofitable  subtlety.  In  truth, 
the  only  patent  ambiguity  that  was  not  open  to  explanation 
by  extrinsic  matter  was  one  that,  in  the  nature  of  things, 
was  not  capable  of  explanation.  Anything  which  was 
capable  of  it  might  be  explained,  as  in  the  case  put  by 
Wigram  ^  of  "a  legacy  to  one  of  the  children  of  A  by  her 
late  husband  B.  Suppose,  further,"  he  adds,  "  that  A  has 
only  .one  son  by  B,  and  that  the  fact  was  known  to  the 
testator,  ...  no  principle  or  rule  of  law  would  .  .  .  pre- 
clude a  court  from  acting  upon  the  evidence  of  facts  by 
which  the  meaning  of  an  appar(>ntly  ambiguous  will  would, 

1  8  Co.  p.  1. '):■). 
^  Kxtr.  Ev.  pi.  79. 


THE   "PAROL   EVIDENCE"  RULE.  425 

in  such  a  case,  be  reduced  to  certainty."  ^  Generally  speak- 
ing, ambiguities,  or  any  other  dilBculties,  patent  or  latent, 
are  all  alike  as  regards  the  right  and  duty  to  compare  the 
documents  with  extrinsic  facts,  and  as  regards  the  possi- 
bility that  they  may  vanish  when  this  is  done.  As  to  the 
resort  to  direct  statements  of  intention,  in  the  one  case  of 
"  equivocation,"  namely,  where  there  are  more  than  one 
whom  the  name  or  description  equally  fits,  the  right  to 
resort  to  these  declarations  in  such  cases  in  no  way  depends 
on  the  difference  between  what  is  patent  and  latent.^ 

The  great  citation  in  the  discussions  of  the  seventeenth 
centuiy  and  the  first  half  of  the  eighteenth  was  the  Lord 
Cheyne3''s  case.  When  Bacon's  maxim  was  first  brought 
to  the  general  notice  of  the  profession,  —  namely,  I  believe, 
about  the  year  1761,  —  it  appeared  no  longer  in  its  original 
character  as  a  maxim  relating  to  averments,  i.  e.,  to  plead- 
ing, but  to  evidence ;  and  it  has  since  almost  always  been 
quoted  in  this  sense.  But  it  has  been  well  remarked  by  an 
acute  writer  that  "We  should  commit  an  injustice  to  the 
memory  of  our  great  lawyer  and  philosopher  if  we  looked 
upon  this  valuable  fragment  as  if  it  purported  to  be  a  com- 
plete dissertation  upon  the  use  of  extrinsic  evidence  in  the 
judicial  interpretation  of  legal  instruments.  .  .  .  It  is  worth 
while  to  observe  that  the  immediate  subject,  both  of  the 
maxim  and  the  commentary,  is  not  evidence,  but  pleading  ; 
and  although,  no  doubt,  the  pleadings  would  guide  the  judge 

1  Compare  the  case  put  by  Elphinstone  (3  Jurid.  Soc.  Pap.  266)  of 
a  gift  "to  my  nephew  John  or  Thomas,"  where,  extrinsical ly,  it  might 
appear  that  the  nephew  was  known  to  the  testator  by  both  these  names. 
And  see  the  language  of  Sir  Thomas  Plumer  in  Colpoys  v.  Colpoys, 
Jacob,  p.  463  (1822),  declaring  that  "  it  has  never  been  considered  an 
objection  to  the  reception  of  the  evidence  of  .  .  .  circumstances  tliat 
the  ambiguity  was  patent,  manifested  on  the  face  of  the  instrument." 

2  Doe  d.  Cord  v.  Need.s,  2  M.  &  W.  129;  1  Jarm.  Wills  (5th  Eng.  ed.), 
400-401  ;  Browne,  Parol  Ev.  p.  v,  ss.  49,  126;  Graves,  Extrinsic  Evid., 
Proc.  of  Va.  Bar  Assoc,  for  1893  ;  Hawkins,  2  Jur.  Soc.  Pap.  324 :  "  This 
rule  is  not  in  any  way  contained  or  implied  in  the  maxim  of  latent  and 
patent  ambiguities." 


426  LAW   OF   EVIDENCE. 

as  to  the  issues  upon  which  evidence  would  be  received, 
they  would  not  necessarily  determine  the  nature  of  the 
evidence  admissible  upon  each  issue."  ^ 

4.  It  was  known  that  construction  must  take  some  account 
of  the  things  and  persons  of  which  the  document  spoke. 
To  some  extent  this  must  always  have  included  the  con- 
ditions, circumstances,  and  relations  out  of  the  midst  of 
which  and  with  reference  to  which  the  writer  spoke.  But 
the  courts  were  shy  of  going  far  in  that  direction ;  indeed 
of  going  at  all  beyond  the  bounds  which  limit  the  identify- 
ing process,  that  of  ascertaining,  in  the  simplest  sense,  the 
persons  and  things  named  in  the  writing. 

In  1651,^  in  ejectment,  it  appeared  upon  a  special  verdict 
that  one  who  had  real  estate,  and  also  had  goods  and 
chattels  worth  only  five  pounds,  gave  to  his  wife,  by  will, 
"  his  whole  estate,  paying  debts  and  legacies,"  and  these 
debts  and  legacies  amounted  to  forty  pounds.  It  was  held 
that  the  lands  passed,  as  well  as  the  goods,  and  an  estate 
in  fee  simple.  "Hales"  (afterwards  the  Chief  Baron  and 
Chief  Justice,  Sir  Matthew  Hale)  argued,  for  the  plaintiff, 
that  the  intention  to  devise  both  lands  and  goods  appeared 
by  "  the  ordinary  manner  of  speech.  .  .  .  Also,  the  subject- 
matter  in  fact  doth  prove  this  to  be  his  intent ;  and  al- 
though here  is  not  a  collateral  averment  to  prove  the  inten- 
tion, but  a  collateral  proof  to  declare  the  testator's  intent, 
this  may  be  admitted  to  ascertain  the  coui't  of  his  meaning, 
as  it  is  in  proving  an  Act  of  Parliament.  In  the  Lord 
Cheyney's  case,  an  averment  standijig  with  a  will  was 
accounted  allowable,  though  an  averment  against  a  will 
be  not,"  etc. 

In   1702,'  on  a  special  verdict  in  ejectment,  it  was  set 

^  F.  M.  Morgan,  Extrinsic  Evi(l(?nco  in  tlic  Intcrjjretation  of  Wills, 
2  .Tiiricl.  Soc.  Paj).  .351,  ,178  (Dec.  1800). 

'^  Kirman  v.  .lolin.son,  Style,  293.  It  is  noticeable  how  few  the  extrin- 
sic fact.s  are  in  the  earlier  special  verdicts  of  this  sort ;  ;'.  e.,  such  as 
supply  the  court  with  the  facts  needed  in  construing  a  document. 

3  Colo  r.  IJawlinson,  1  Salk.  234;  s.  c.  2  Lord  Rayin.  831,3  Bro. 
r.  C.  7.     'I'h(!  facts  of  tliis  case,  and  the  relation  of  the  various  parties 


THE   "PAROL   EVIDENCE"   RULE.  427 

forth  that  a  widow  died  seised  and  possessed  of  the  Bell 
Tavern  and  certain  leasehold  estates  ;  and  that  her  will 
provided,  —  "I  give,  ratify,  and  confirm  all  my  estate,  right, 
title,  and  interest  which  I  now  have,  and  all  the  term  and 
terras  of  years  which  I  now  have,  or  may  have  in  my  power 
to  dispose  of  after  my  death,  in  whatsoever  I  hold  by  lease 
from  Sir  John  Freeman,  and  also  the  house  called  the  Bell 
Tavern,  to  John  Billingsley."  This  J.  B.  was  the  son  and 
heir  of  the  widow's  husband,  and  the  son  also  of  the  widow, 
who  had  another  son  by  a  former  husband.  The  husband 
being  seised  in  fee  of  the  Bell  Tavern,  had  settled  it  for 
the  use  of  himself  for  life,  remainder  to  his  wife  for  life, 
remainder  to  his  son  in  tail,  remainder  to  his  wife  in  fee. 
The  question  now  was  what  estate  John  Billingsley  took  in 
the  Bell  Tavern,  under  the  widow's  devise,  whether  a  life 
estate  in  the  reversion,  or  the  fee.  A  majority  of  the 
judges,  Powell,  Powys,  and  Gould,  held  (and  it  was 
affirmed  afterwards  in  the  Exchequer  Chamber  and  the 
House  of  Lords)  that  he  took  an  estate  in  fee.  They  relied 
in  part  on  the  fact  that  she  knew  that  he  was  already  tenant 
in  tail  under  the  settlement  and  "  could  not  have  intended 
so  vain  and  useless  an  estate  ...  as  an  estate  for  life 
after  an  estate  tail." 

To  us  of  the  present  time  that  decision  seems  equally 
good  sense  and  good  law.  But  observe  the  dissent  and  the 
reasoning  of  Chief  Justice  Holt,  the  greatest  lawyer  of 
them  all.  He  was  unwilling  to  admit  that  what  appeared 
upon  the  interpretation  of  the  words,  taken  alone,  to  be  a 
life  estate,  should  become  an  estate  in  fee  through  the  inter- 
preter's having  examined  the  terms  of  the  father's  settle- 
ment.   "  Holt,  C.  J.,  contra,  for  the  intent  of  a  testator  will 

involved  in  it  to  each  other,  are  more  fully  and,  as  it  would  seem,  more 
accurately  given  in  3  Bro.  P.  C.  7,  where  there  is  a  brief  account  of  the 
arguments  of  counsel  in  the  House  of  Lords,  but  only  a  bare  statement  of 
the  result  reached  by  the  Lords,  in  1 705.  It  appears  from  this  report  that 
Chief  Justice  Trevor,  in  the  Exchequer  Chamber,  dissented  from  the 
opinion  of  the  majority. 


428  LAW   OF   EVIDENCE. 

not  do,  unless  there  be  sufficient  words  in  the  will  to  mani- 
fest that  intent ;  neither  is  his  intent  to  be  collected  from 
the  circumstances  of  his  estates,  and  other  matters  collateral 
and  foreign  to  the  will,  but  from  the  words  and  tenor  of 
the  will  itself;  and  if  we  once  travel  into  the  affairs  of  the 
testator,  and  leave  the  will,  we  shall  not  know  the  mind  of 
the  testator  by  his  words,  but  by  his  circumstances  ;  so 
that  if  you  go  to  a  lawyer,  he  shall  not  know  how  to 
expound  it.  Upon  the  will  'tis  so;  but  upon  the  matter 
found  in  a  special  verdict,  'tis  otherwise;  and  what  if 
more  accidental  circumstances  be  discovered,  and  be  made 
the  matter  of  another  verdict  ?  Men's  rights  will  be  very 
precarious  upon  such  construction.  And  as  for  the  honesty 
of  the  construction,  what  if  the  woman  paid  a  good  portion, 
and  was  purchaser  of  this  reversion,  is  it  not  as  honest 
then  to  construe  it  in  favor  of  her  heir  as  to  expound  it  in 
favor  of  the  right  heir  of  the  husband  ?  But  we  must  not 
depart  from  the  will  to  find  the  meaning  of  it  in  things  out 
of  it.  'T  is  then  a  certain  rule  that  to  devise  lands  to  H 
without  farther  words,  will  pass  but  an  estate  for  life, 
unless  there  be  other  words  to  show  his  intent,  as  forever ; 
or  unless  he  devise  for  some  special  purpose  which  cannot 
be  accomplished  without  a  larger  estate  ;  and  as  this  is  a 
sure  rule,  so  it  holds  good  as  well  where  the  devise  is  of  a 
reversion  as  where  't  is  of  lands  in  possession,  unless  he 
devise  it  as  a  reversion,  or  take  notice  of  a  particular  estate, 
for  then  his  intent  may  appear  upon  the  face  of  the  will 
itself;  but  if  the  words  be  general,  and  without  regard  to 
the  nature  of  the  thing,  it  is  otherwise,  for  it  shall  not  be 
construed  from  the  nature  of  the  thing,  which  is  extrinsical, 
but  from  the  words  of  the  will.  Ask  a  lawyer  what  passes  : 
he  says  an  estate  for  life,  for  he  knew  not  that  it  was  a 
reversion ;  and  though  it  be  a  fruitless  estate,  and  will 
signify  nothing,  yet  that  does  not  appear  till  it  be  found, 
and  tlmrefore  wluui  found  'tis  not  to  be  regarded." 

The.  ('hief  Justice  here  retires  into  that  lawyer's  Para- 
dise   where  all  words  have  a  fixed,  precisely  ascertained 


THE   "PAROL  EVIDENCE"  RULE.  429 

meaning;  where  men  may  express  their  purposes,  not  only 
with  accuracy,  but  with  fulness;  and  where,  if  the  writer 
has  been  careful,  a  lawyer,  having  a  document  referred  to 
him,  may  sit  in  his  chair,  inspect  the  text,  and  answer  all 
questions  without  raising  his  eyes.  Men  have  dreamed  of 
attaining  for  their  solemn  muniments  of  title  such  an 
absolute  security ;  and  some  degree  of  security  they  have 
compassed  by  giving  strict  definitions  and  technical  mean- 
ings to  words  and  phrases,  and  by  rigid  rules  of  con- 
struction. But  the  fatal  necessity  of  looking  outside  the 
text  in  order  to  identify  persons  and  things,  tends  steadily 
to  destroy  such  illusions  and  to  reveal  the  essential  im- 
perfection of  language,  whether  spoken  or  written.^ 

5.  Courts  of  equity  by  the  end  of  the  seventeenth  cen- 
tury, besides  looking  more  freely  at  extrinsic  facts,  had 
begun  to  use  a  writer's  extrinsic  expressions  of  intention 
in  a  much  freer  way  than  courts  of  law.  Adhering  to  the 
rule  that  extrinsic  intention  must  not  be  used  to  displace 
or  vary  that  of  the  writing,  they  nevertheless  found  many 
ways  of  using  it,  and  even  of  using  the  direct  oral  expres- 
sion of  it.  These  courts,  having  no  jury,  had  not  before 
them,  in  listening  to  whatsoever  evidence  might  help  them, 
the  apprehension  so  often  expressed  by  the  common-law 
judges  that  *'  it  is  not  safe  to  admit  a  jury  to  try  the  in- 
tent of  the  testator."  ^  It  must  be  remembered  what  such 
a  fear  at  that  period  meant.  Not  yet  had  any  distinct  sys- 
tem of  rules  for  excluding  evidence  come  into  existence.^ 
The  power  of  judges  to  set  aside  verdicts  as  being  against 
the  evidence  had  begun  to  be  exercised,  but  had  not  got 
far.  The  attaint  was  still  the  regular  way  of  controlling 
the  jury,  and  this  had  practically  lost  its  hold.  The 
jury  still  held  its  old  character  and  function,  might  decide 

^  "  The  rule,"  said  Lord  Hardwicke,  about  half  a  century  later,  in 
citing  Cole  >:  Rawlinson,  "  is  laid  down  much  too  large  by  Holt."  Good- 
inge  V.  Goodinge,  1  Ves.  231  (1749). 

-  Powell,  J.,  in  Lawrence  v.  Dodwell,  1  Lutw.  734  (1698). 

8  Supra,  179,  180. 


430  LAW   OF  EVIDENCE. 

on  its  own  knowledge  alone,  and.  if  it  heard  evidence, 
might  reject  it  all.  This  power  of  the  jury,  and  its  ex- 
emption from  hue  and  imprisonment  for  deciding  against 
the  evidence,  were  vindicated  in  Bushell's  case  in  1670.^ 
The  Statute  of  Frauds,  six  years  later,  relieved  against 
this  state  of  things,  by  requiring  in  a  great  many  cases 
that  there  should  be  a  writing,  or  some  other  specific  act 
or  formality,  before  an  action  could  be  brought  or  a  claim 
established.  This  had  the  same  effect  which  attended  a 
requirement  of  the  sixteenth  century  and  later,  that  in 
certain  cases  there  should  be  two  witnesses,  or  at  least  one 
witness;^  it  said,  in  effect,  that  it  should  no  longer  be 
true  that  the  verdict  of  a  jury  was  enough,  whether  there 
were  witnesses  or  not.  After  the  Statute  of  Frauds,  —  a 
very  extraordinary  enactment  to  have  been  passed  by  an 
English-speaking  community  in  any  age,  so  comprehensive 
is  it  and  so  far-reaching,^  —  no  jury  could  find  a  contract  of 
the  sort  named  in  §  4,  unless  there  were  a  writing;  or  one 
named  in  §  17,  unless  there  were  either  a  writing  or  one  of 
the  facts  there  specified;  no  jury  could  find  a  devise  of 
real  estate  without  a  signature  and  witnesses,  as  required 
in  §  5,  or  a  will  of  personalty  without  writing,  except 
under  circumstances  indicated  in  §§  19  to  23.  To  the 
most  important  dealings  of  men  the  Statute  of  Frauds  gave 
new  security.  It  is  not  jjrobable  that  so  wide-reaching 
an  act  could  have  been  passed  if  jury  trial  had  been  on 
the   footing   which   it  holds  to-day.^     And   in  construing 

1  Vaughan,  135. 

2  Stats.  1  Ed.  VI.  c.  12,  §  22  (l.'J47) ;  5  &  G  Ed.  VI.  c.  11,  §  12  (l.')52), 
retjuiriiig  two  witnesses  iu  cases  of  treason;  and  21  Jac.  I.  c.  27  (1623), 
wliere  the  niotlicr  of  a  bastard  cliild  who  conceals  its  death  is  puuislied 
as  for  mnriic^r,  unless  she  prove,  "  by  one  witness  at  the  least,"  that  the 
child  was  born  dead.  See  Hale's  ])ractice  under  this  statute,  2  ITale,  Cr. 
Law,  289  ;  stqmi,  179  n. 

8  [It]  "  carries  its  inlhience  throuf^li  the  whole  body  of  our  civil  juris- 
prudence, and  is  in  many  respects  the  most  coni))rehensive,  salutary,  and 
important  legislative  regulation  on  record  affecting  the  security  of  private 
rights." — 2  Kent,  Com.  404,  note. 

*  Supra,  180.  Coni])are  Cave,  J.,  in  Jloare  v.  Evans,  [1892]  1  Q.  B. 
593,  .097. 


THE   "PAROL   EVIDENCE"   RULE.  431 

the  statute  it  was  entirely  natural  that  different  ideas 
and  methods  should  prevail  in  the  equity  and  the  com- 
mon-law courts.  "This  is  not,"  said  an  equity  court, 
in  1708,^  in  considering  the  question  of  hearing  oral 
statements  of  a  testator's  intention,  "like  the  case  of  evi- 
dence to  a  jury,  who  are  easily  biased  by  it,  which  this 
court  is  not."  In  1736  we  read  in  Bacon's  Abridgments^ 
that  the  rule  of  rejecting  "  parol  evidence  ...  to  control 
what  appeared  on  the  face  of  a  deed  or  will  .  .  .  has 
received  a  relaxation,  especially  in  the  courts  of  equity, 
where  a  distinction  has  been  taken  between  evidence  that 
may  be  offered  to  a  jury,  and  to  inform  the  conscience  of 
the  court,  namely,  that  in  the  first  case  no  such  evidence 
should  be  admitted,  because  the  jury  might  be  inveigled 
thereby ;  but  that  in  the  second  it  could  do  no  hurt,  because 
the  court  were  judges  of  the  whole  matter,  and  could  dis- 
tinguish what  weight  and  stress  ought  to  be  laid  on  such 
evidence." 

It  was  for  doing  this  sort  of  thing  that  Lord  Hardwicke, 
in  1742,  complained  of  his  predecessor,  Cowper  (1705- 
1710) :  "  He  went  upon  this  ground,  that  it  was  by  way  of 
assisting  his  judgment,  in  cases  extremely  dark  and  doubt- 
ful. ...  I  was  never  satisfied  with  this  rule  of  Lord 
Cowper's,  of  admitting  parol  evidence  in  doubtful  wills; 
besides,  he  went  farther  in  the  great  case  of  Strode  \k 
Eussell."*  In  1708,  Lord  Cowper  seemed  to  allow  this  as 
a  regular  practice  when  the  declarations  were  consistent 
with  the  will :  "  Where  the  words  stand  in  eqnilihrio,  and 
are  so  doubtful  that  they  may  be  taken  one  way  or  the 
other,  there  it  is  proper  to  have  evidence  read  to  explain 
them,  and  we  will  consider  how  far  it  shall  be  allowed, 
and  how  far  not  after  it  is  readj  .   .   .  and  the  distinction 

1  Strode  v.  Russell,  3  Rep.  Ch.  169.  The  Lord  Chancellor  Cowper 
appears  to  be  speakiug.  He  was  assisted  by  the  Master  of  the  Rolls, 
Trevor,  C.  J.,  and  Tracy,  J. 

2  Vol.  2,  p.  .309. 

8  Ulrich  V.  Litchfield,  2  Atk.  372. 


432  LAW   OF   EVIDENCE. 

ia  Cheyney's  case  well  warrants  the  reading  of  evidence 
where  the  intent  of  the  testator  is  doubtful,  as  there  where 
a  man  had  two  sons,  named  John,  etc. ,  which  my  Lord 
Chancellor  said  differed  not  from  this  case,  where  the 
words  hang  in  equal  balance  what  settlement  he  intended."  ^ 
Cowper  had  held  the  same  thing  in  1705,  where  a  bequest 
gave  all  the  testator's  household  goods,  as  woollen,  linen, 
pewter,  and  brass  whatsoever,  except  a  certain  trunk. 
'The  writer  of  the  will  was  offered  to  show  that  the  tes- 
tator directed  him  to  insert  all  his  goods,  except  the  trunk; 
"and  my  Lord  Keeper  thought  it  might  [be  allowed],  not- 
withstanding the  Statute  of  Frauds  and  Perjuries,  for  it 
here  neither  adds  to  nor  alters  the  will,  but  only  explains 
which  of  the  meanings  shall  be  taken,  as  in  case  of  a 
devise  to  son  John  where  the  testator  had  two  of  the  same 
name."^  And  in  1750-1751,^  Sir  John  Strange,  Master  of 
the  Rolls,  said:  "The  distinction  as  to  admitting  parol 
evidence  I  have  always  taken  to  be  that  in  no  instance  it 
shall  be  admitted  in  contradiction  to  the  words  of  the 
will ;  but  if  words  of  the  will  are  doubtful  and  ambiguous, 
and  unless  some  reasonable  light  is  let  in  to  determine 
that,  the  will  will  fall  to  the  ground,  anything  to  explain, 
not  to  contradict,  the  will,  is  always  admitted.  So  it  is 
in  the  case  of  having  two  sons  of  the  same  name, "  etc. 

In  these  passages,  it  will  be  noticed,  the  old  case  of  two 
persons  or  things  of  the  same  name  holds  the  place,  not 
of  an  exception,  as  it  does  now,  but  of  an  instance  under 
a  general  principle.  Sometimes  this  principle  seems  to 
have  been  conceived  of  as  covering  all  cases  of  an  equi- 
librium upon  the  evidence;  and  sometimes  to  have  been 
limited  to  errors  or  uncertainties  as  to  names  and  persons; 

1  Strode  V.  Ilussell,  .3  Kep.  Cli.  1 69.    This  was  not  a  case  of  equivocation. 

2  I'(!n(ll(!t()ii  V.  Grant,  1  ¥.([.  Cas.  Ab.  2.'?0,  2  ;  s.  c.  2  Vern.  517,  where 
the  f^ift  reads:  "  I  yive  my  lioiisoliohl  stuff,  as  l)rass,  ])cwtor,  linen,  and 
w(Kjlh!n  wiiatHiinver,  oxcent  a  trunk  under  the  clianiber  window."  And 
so  Doclisey  ".  Docissey,  8  Vin.  Ah.  l'.).'j. 

8  lluuip-sliiro  V.  I'icrce,  2  Vea.  216. 


THE   "PAROL   EVIDENCE"   RULE.  433 

and  in  such  cases  resort  could  be  had  generally  to  the  tes- 
tator's oral  declarations.^  In  1707  a  testator  had  devised 
an  estate,  charged  with  the  payment  of  a  debt  of  £100  to 
one  Shaw.  It  turned  out  that  this  sum  was  due,  not  to 
Shaw,  but  to  Alice  Beck,  then  the  wife  of  one  Fitch, 
The  devisees  refused  to  pay  her.  In  a  bill,  apparently  to 
enforce  payment,  the  plaintiff  was  allowed  to  show  by  the 
scrivener  that  the  testator  said  he  meant  the  £100  which 
was  due  Mrs.  Fitch;  "the  Lord  Chancellor  [Cowper]  de- 
claring he  saw  no  hurt  in  admitting  of  collateral  proof  to 
make  certain  the  person  or  the  thing  described."  ^  In  1718,^ 
where  a  legacy  was  given  to  Mrs.  Sawyer,  and  there  was 
no  such  person  known  to  the  testatrix,  it  was  alleged  that 
she  meant  Mrs.  Swopper;  and  a  master  was  directed  to 
inquire  who  was  meant,  "and  whether  the  testatrix  meant 
Mrs.  Swopper."  So,  in  the  well-known  case  of  Beaumont 
V.  Fell,*  in  1723,  where,  under  a  bequest  to  Catherine 
Earnley,  Gertrude  Yardley  was  allowed  to  take,  evidence 
was  admitted  of  declarations  of  the  testator  that  *'he  would 
do  well  for  her  by  his  will."  And  Lord  Hardwicke,  in 
considering  a  testator's  declaratioiis  of  his  meaning, 
repeatedly  recognized  some  such  rule;  as  in  1742:  "I  do 
not  know  that  upon  the  construction  of  a  will  courts  of 
law  or  equity  admit  parol  evidence,  excejDt  in  two  cases,  — 
first,  to  ascertain  the  person,  where  there  are  two  of  the 
same  name,  or  else  where  there  has  been  a  mistake  in  a 
Christian  or  surname;  and  this  upon  an  absolute  necessity; 
as  in  Lord  Cheyney's  case,  where  there  were  two  sons  of 
the  name  of  John.  .  .  .  The  second  case  is  with  regard  to 
resulting  trusts  relating  to  personal  estate,  where  a  man 

1  See  Roberts,  Frauds,  16,  17  ;  Wigrani,  Ext.  Ev.  pi.  157,  1.58. 

'-  Hodgson  V.  Hodgson,  2  Veru.  59.3;  s.  c.  1  Eq.  Cas.  Ab.  2.31.  lu  the 
margin  to  this  report  it  is  stated  that  in  Prec.  Ch.  229,  the  case  is 
given  as  one  where  the  testator  had  given  the  woman's  maiden  name, 
having  forgotten  that  of  her  husband.  But  the  report  in  Prec.  Ch.  does 
not  support  tliis  statement. 

3  Masters  '•.  Masters,  1  P.  Wms.  421. 

*  2  P.  Wins.  141. 


434  '       LAW   OF   EVIDENCE. 

makes  a  will  and  appoints  an  executor  with  a  small  legacy, 
and  the  next  of  kin  claim  the  residue."  ^ 

In  1749,  where  there  was  a  legacy  to  such  of  a  man's 
nearest  relations,  as  his  executors  "  should  think  poor  and 
objects  of  charity,"  "evidence  was  then  offered  of  the 
testator's  having  poor  relations  in  Salop,  and  that  he  knew 
thereof;  to  which  was  objected  the  rule  by  Holt,  C.  J.,  in 
Cole  V.  E-awlinson,  that  the  intention  of  the  testator  is 
not  to  be  collected  from  collateral  and  foreign  circum- 
stances. Lord  Chancellor  (Hardwicke)  :  "  That  rule  is  laid 
down  much  too  large  by  Holt;  for  in  several  cases  it  is 
admitted  that  it  must  be  allowed,  namely,  where  the 
description  or  thing  is  uncertain  (not  ouly  where  two  of 
the  same  name),  it  must  be  admitted  to  show  that  the 
testator  knew  such  a  person,  and  used  to  call  her  by  a 
nickname.  Although  parol  evidence  cannot  be  read  to 
prove  instructions  of  the  testator,  after  the  will  is  reduced 
into  writing,  or  declarations  whom  he  meant  by  written 
words  of  the  will,  yet  that  is  different  from  reading  it  to 
prove  that  the  testator  knew  he  had  such  relations,  to 
establish  which  fact  it  may  be  read,  but  not  to  go  any 
farther.  And  though  this  is  a  nice  distinction,  yet  it  is 
a  distinction  in  the  reason  of  the  thing."  About  a  year 
later, ^  in  construing  a  gift  by  will  "to  the  four  children  of 
my  late  cousin  Elizabeth  Bamfield,"  it  appeared  that  she 
had  six  children,  two  by  a  former  husband,  Poddlecomb, 
and  four  by  a  later  one,  Bamfield.  The  Master  of  the 
Kolls,  Sir  John  Strange,  in  dealing  with  an  argument  that 
the  word  "  four  "  should  be  rejected,  and  a  counter  offer  to 
show  the  extrinsic  declarations  of  the  testatrix,  said:  "As 
tliere  is  some  uncertainty,  I  have  admitted  the  going  into 
evidence  to  ('Xj)lain  the  intent  of  tlie  testatrix  in  the 
expression    'the    four.'   .   .   .   The  testatrix  declared  .   .   . 

1  Ulrifh  V.  Lilclificld,  2  Atk.  ."{72.  So  also  iu  Baylis  v.  Attoruey-Gen- 
eral,  2  Atk.  239  (1741). 

2  (Joodiiipjc!  V.  rjoodiiige,  1  Vcs.  231. 
^  Ilainii.sliirn  r.  PitTco,  2  Vcs.  216. 


THE   "PAROL   EVIDENCE"   RULE.  435 

that  she  had  provided  for  Mrs.  Bamfield's  four  children. 
Now  though  the  expression  in  the  will  might  take  those 
by  the  first,  as  well  as  the  second  husband,  yet  this,  which 
I  think  is  proper  evidence,  shows  plainly  that  her  declara- 
tion was  the  four  children  of  Mrs.  Bamfield  .  .  .  ;  which 
explains  what  she  meant  by  the  four  children;  but  she 
also  puts  a  negative  on  the  other  two;  .  .  .  so  that  taking 
this  on  the  face  of  the  will,  in  which  also  the  circumstances 
of  the  family  must  be  taken  altogether,  it  appears  clearly 
that  the  four  children  by  the  second  husband  were  those 
meant  to  share  the  £100." 

In  some  of  the  cases  at  this  period  it  may  be  noticed 
that  the  question  seems  to  be  made  a  general  one,  whether 
any  extrinsic  matter,  any  "parol  evidence,"  any  "col- 
lateral proof,"  may  be  looked  at;  when,  in  reality,  the 
question  is  whether  a  particular  kind  of  evidence  of  inten- 
tion is  receivable,  namely,  the  direct  expressions  of  the 
writer.  This  indiscriminate  use  of  the  phrase  "parol 
evidence  "  has  always  been  one  of  the  sources  of  confusion 
in  dealing  with  this  subject.  Often  there  really  is  this 
more  general  question ;  and  the  question  is,  whether  the 
text  is  not  governed  by  some  rigid  rule,  or  marked  by 
some  peculiarity,  siich  as  to  make  it  impossible  to  help 
the  text  by  extrinsic  matter,  —  as  where  words  with  a 
technical  legal  meaning  are  used,  like  the  word  "heirs," 
or  where  the  absence  of  such  words  forbids  a  given  con- 
struction, or  where  there  is  an  ambiguity  or  imperfection 
of  expression  which  in  its  nature  is  incurable;  as  a  gift 

"to  one  of  the  sons  of  J.  S.,"or  "to  Mr. ."     In  such 

cases,  of  course,  no  "  parol  evidence  "  can  help. 

Sometimes,  admitting  that  it  is  necessary  to  look  into 
extrinsic  facts  to  some  extent,  the  question  is  whether 
you  can  go  farther  than  to  identify  the  persons  and  things 
named  in  the  text.^  And  then,  again,  another  special  ques- 
tion; namely,  admitting  that  you  may  look  into  almost  all 

1  Holt,  C.  J.,  in  Cole  ?•.  Rawlinson,  nbi  supra ;  Kwrtz  v.  Hibuer,  55  IlL 
514 ;  Lord  Hatherley  in  Charter  v.  Charter,  L.  R.  7  H.  L.  364. 


436  LAW   OF   EVIDENCE. 

outside  facts,  the  question  whether  you  are  forbidden  to 
look  at  any  extrinsic  evidence  of  intention.  And  again, 
admitting  that  you  may  look  at  extrinsic  facts  generally, 
even  those  tending  to  prove  intention,  the  question  is, 
whether  you  can  regard  the  writer's  own  direct  statements 
of  intention.  And,  unfortunately,  in  our  cases,  every  one 
of  these  discriminated  questions  is  often  put  as  a  general 
question  whether  parol  evidence  is  admissible. 

6.  In  the  eighteenth  century  two  sources  are  visible  of 
a  liberalizing  influence  in  this  matter  of  interpretation : 
one  proceeding  from  the  rising  system  of  commercial  law, 
and  the  other  from  the  conceptions  of  the  Roman  law 
operating  through  the  ecclesiastical  courts  and  the  courts 
of  equity.  We  see  a  glimpse  of  the  former  in  Lord 
Hardwicke's  remark  in  an  important  case  in  1753.^  The 
plaintiff,  who  had  bought  in  the  market  a  Navy  Bill 
indorsed  by  defendant's  agent,  had  been  held  accountable 
for  it  in  trover  on  the  ground  of  lack  of  authority  in  the 
agent;  and  he  now  sought  and  got  relief  in  equity  against 
the  verdict  and  judgment  in  the  King's  Bench.  One  ques- 
tion was  on  the  construction  of  a  letter  of  attorney,  and 
Lord  Hardwicke  gave  effect  to  "the  custom  among  mer- 
chants, to  explain  the  letter  of  attorney,  as  in  case  of  policy 
of  insurance,  which  could  not  be  otherwise  understood. 
Perhaps  the  judges  of  the  Court  of  King's  Bench  thought 
the  construction  to  be  on  the  letter  of  attorney  itself 
without  such  evidence.  In  this  court  it  is  otherwise.  .  .  . 
The  credit  of  the  funds  depends  on  the  facility  of  trans- 
acting them;  and  therefore  nice  and  critical  construction 
is  not  to  be  put  on  these  powers,  either  at  law  or  iii  equity; 
but  the  usage  must  be  regarded."  We  are,  of  course,  very 
familiar,  at  the  present  day,  with  the  liberal  methods  of 
the  courts  in  interpreting  what  Baron  Parke  called  "  mer- 
cantile short  liancl."^    Of  the  other  influence  above  men- 

1   ICkiiis  r.  Miiclisli,  Ainl.lcr,  184. 

'■^  I\l;ir.slinll  r.  Lyiiri,  fi  M.  &  W.  100.  Seo,  r.  fj.,  Brown  v.  Byrne,  3  El. 
&  Bl    70:i,  :iii<l  S:iliii(iii  Fnlls  M;ui.  Co.  r,  Goddard,  14  IIow.  446. 


THE   «' PAROL   EVIDENCE"   RULE.  437 

tioned,  one  may  see  illustrations,  not  merely  in  the  whole 
tendency  and  general  methods  of  the  equity  courts,  but  in 
their  way  of  dealing  with  wills  of  personalty.  In  a  case 
in  1723,^  a  legacy  to  Catherine  Earnley  was  awarded  to 
Gertrude  Yardley,  on  peculiar  facts,  tending  to  show  very 
clearly  a  misapprehension  on  the  scrivener's  part  in  taking 
down  the  name  "  Gatty  "  Yardley,  and  an  intention  on  the 
testator's  to  name  her.  There  was  no  person  with  the 
name  of  Catherine  Earnley.  The  Master  of  the  Eolls  said: 
"If  this  had  been  a  grant,  nay,  had  it  been  a  devise  of 
land,  it  had  been  void  by  reason  of  the  mistake  both  of  the 
Christian  and  surname.  .  .  .  However,  this  being  a  be- 
quest of  a  personal  thing,  a  chattel  interest,  makes  it  a 
different  case,  and  as  originally  a  bequest  of  a  legacy  was 
governed  by  and  construed  according  to  the  rules  of  the 
civil  canon  law,  so  shall  it  be  after  making  the  Statute  of 
Frauds,  provided  there  be  a  will  in  writing.  .  .  .  The 
name  and  not  the  person  is  mistaken;  and  it  is  very 
material  that  here  is  no  such  person  as  Catherine  Earnley 
claiming  this  legacy."  In  this  case  no  distinction  was 
taken  as  to  the  kinds  of  evidence  of  intention ;  direct  oral 
statements  were  included  with  the  other  facts. ^ 

7.    In  one  of  the  cases  above  mentioned,*  Lord   Hard- 
wicke  mentions  a  famous  sort  of  instance  that  figured  much 
in  the  books  for  a  century  and  a  half,  from  the  English' 
Revolution  to  the  Statute  1  Wm.  IV.   c.  40,  in  the  year 
1830.     It  was  the  rule  of  English  law  that  where  a  testator 

1  Beaumont  v.  Fell,  2  P.  Williams,  141. 

2  Had  there  been  a  jurisdiction  for  reforming  wills,  perhaps  a  question 
of  that  sort  might  have  arisen  here.  See  Stephen's  recommendation  for 
giving  the  courts  such  a  power,  Dig.  of  Evid.  (.3d  ed.)  Preface,  p.  xxxvii. 
For  the  questions  that  come  up  in  establishing  the  factum  of  a  Avill,  in 
courts  of  probate,  see  Guardhouse  v.  Blackburn,  L.  R.  1  P.  &  D.  109. 
"  The  question  in  such  cases,"  said  Sir  J.  P.  Wilde,  "  is  not  what  intention 
ought  to  be  assigned  to  the  words  of  a  given  written  paper,  but  to  what 
extent  does  a  given  written  paper  express  the  testamentary  intentions  of 
the  deceased." 

8  Ulrich  V.  Litchfield,  2  Atk.  372. 


438  LAW   OF   EVIDENCE. 

left  personal  estate  undisposed  of,  and  appointed  an  ex- 
ecutor, this  personage  took  the  surplus.  "At  law  it  has 
been  the  rule  from  the  earliest  period  that  the  whole 
personal  estate  devolves  on  the  executor;  and  if,  after 
payment  of  the  funeral  expenses,  testamentary  charges, 
debts,  and  legacies,  there  shall  be  any  surplus,  it  shall 
vest  in  him  beneficially."^  On  the  top  of  this,  however, 
the  equity  courts  laid  down  a  presumptive  rule  of  construc- 
tion, that  if  the  will  showed  a  gift  to  the  executor,  this 
indicated  a  purpose  not  to  give  him  the  surplus;  and  in 
such  a  case  he  was  held,  prima  facie,  not  entitled  to  it.  A 
contrary  intention  might,  indeed,  be  apparent  from  the 
whole  will;  and  if  it  were  not,  it  was  allowed  to  appear  by 
the  oral  declarations  of  the  testator.  Such  declarations, 
it  will  be  observed,  supported  the  general  ^rma /ac/e  right 
of  an  executor;  they  were  only  received  "to  rebut  the 
equity  "  which  denied  that  right.  Although  when  these 
declarations  were  received  they  might  be  met  by  others  in 
a  contrary  sense,  yet  no  declarations  were  directly  and  in 
the  first  instance  receivable  to  contradict  the  general  legal 
right  of  the  executor.^  Nor,  where  the  construction  of  the 
will  was  plain  against  the  executor,  as  in  the  case,  at  least 
in  modern  times,  where  the  gift  was,  in  terms,  for  his 
care  and  trouble,  was  any  effect  at  all  allowed  to  extrinsic 
declarations  of  intention.^  This  matter,  for  the  most  part, 
came  to  an  end  in  1830  by  the  Statute  1  Wm.  IV.  c.  40. 
The  doctrine  before  that  having  been  that  "the  executor 
shall  take  beneficially,  unless  there  is  a  strong  and  violent 
presumption  that  he  shall  not  so  take,"^  now,  the  statute 
made  him  a  trustee  of  the  residue  for  the  next  of  kin, 
"unless  it  shall  appear  by  the  will  or  any  codicil  thereto" 
that  he  "was  intended  to  take  .   .   .   beneficially."     It  will 

1  2  Williams,  Executors,  *1327  (.5th  Am.  cd.). 

^  Lady  Onborno  v.  Villicrs,  2  Eq.  Cas.  Ab.  416,  12  ;  Cloyne  v.  Young, 
2  Ves.  95. 

'  LaiiRham  ii.  Satiford,  17  Ves.  4.35  (1811). 

♦  Sir  William  Grant  in  Pratt  v.  Sladdcn,  14  Ves.  p.  197  (1807). 


THE   "PAROL   EVIDENCE"   EULE.  439 

be  observed  that  not  merely  did  the  statute  change  the 
fundamental  rule,  but  it  required  that  the  intention  to 
give  to  the  executor  beneficially  should  appear  by  the 
writing.^ 

Under  this  general  head  of  "rebutting  an  equity  "are 
brought  all  the  other  cases  of  a  resulting  trust,  the  pre- 
sumption against  double  portions,  and  the  like;  and  it 
has  even  been  stated  as  a  general  principle  that  where 
"  the  document  is  of  such  a  nature  that  the  court  will  pre- 
sume that  it  was  executed  with  any  other  than  its  appar- 
ent intention,"  the  apparent  intention  may  be  shown  to  be 
the  real  one.^  In  such  cases  the  testator's  mere  extrinsic 
intention  is  admitted,  not  as  adding  to  the  document,  or 
varying  or  contradicting  it,  or  as  evidence  in  aid  of  inter- 
pretation. It  comes  in  as  a  mere  incident  to  the  "equity," 
as  a  ground  of  relief  against  the  operation  of  a  rule  which 
refuses  its  proper  construction  to  the  document.^  "In  such 
case,"  says  Jarman,  "it  does  not  contradict  the  will,  its 
effect  being  to  support  the  legal  title  of  the  devisee  against, 
not  a  trust  expressed  (for  that  would  be  to  control  the 
written  will),  but  against  a  mere  equity  arising  by  impli- 
cation of  law."*  And  mere  extrinsic  intention,  being  thus 
available,  in  point  of  substantive  law,  is  provable  in  any 
legitimate  way.  The  objections  to  proving  it  by  direct 
statements  of  intention,  when  offered  in  aid  of  interpreta- 
tion, do  not  hold  here. 

1  Williams  v.  Arkle,  L.  R.  7  H.  L.  606 ;  Love  v.  Gaze,  8  Beav.  472. 

2  Steph.  Di^.  Ev.  art.  91.  See  also  1  Jarm.  Wills  (5th  Eng.  ed.), 
390-392;  Reynolds  v.  Robinson,  82  N.  Y.  103;  In  re  Atwood's  Estate,  14 
Utah,  1. 

3  Of  this  class  of  cases  Hawkins  (Wills,  Preface,  2d  Am.  ed.  ix)  says: 
"The  anomalous  case  of  what  are  called  ' presumptions '  of  law  are,  in 
reality,  rules  of  construction  derived  from  the  civil  law,  which,  having 
obtained  a  lodgment  in  English  law,  but  being  disapproved  of,  have  been 
allowed  to  retain  their  own  antidote  in  the  shape  of  the  capability  of 
being  rebutted  by  parol  evidence,  which  (in  common,  however,  with  other 
rules  of  construction)  they  possessed  in  the  system  irom  which  they  were 
originally  derived." 

*  1  Wills  (5th  ed.),391. 


440  LAW   OF   EVIDENCE. 

8.  We  have  observed  that  direct  statements  of  intention 
were  formerly  nsed,  niucli  more  freely  than  they  would  be 
to-day.  If  the  Master  of  the  Rolls,  in  1750/  might  think 
it  possible,  logically,  to  help  himself  ou.t  of  an  ordinary 
uncertainty  in  such  a  way  as  this,  why  should  it  not  gen- 
erally be  so  used,  in  any  like  case  ?  Well,  evidently,  it 
w^ould  be  highly  dangerous  to  do  it,  even  for  a  court  of 
equity,  and  merely  "  to  inform  the  conscience "  of  the 
judge.  And  when  you  come  to  the  jury  of  a  common-law 
court,  it  w^ould  be  dangerous  in  the  extreme.  That  was 
reason  enough  for  restraining  the  use  of  such  evidence.  It 
should,  however,  be  carefully  borne  in  mind  that,  in  the 
nature  of  things,  it  might  often  fairly  help  in  putting  a 
construction  on  the  text.  It  was  not  a  denial  of  their  pro- 
bative quality,  as  mere  handmaids  to  the  text,  which  still 
continued,  in  the  main,  and  with  greater  rigor,  to  keep  out 
these  extrinsic  declarations  of  intention.  This  was  care- 
fully indicated  by  Sir  John  Strange  in  the  case  referred 
to,  when,  after  applying  the  direct  evidence  of  intention, 
he  comes  back  and  rests  it  all  on  the  will  itself;  "so  that 
taking  this  on  the  face  of  the  will  ...  it  appears  clearly," 
etc.  In  the  same  way,  under  the  narrower  limitations 
which  soon  confined  direct  evidence  of  intention  in  aid 
of  construction,  merely  to  cases  of  equivocation,  the  judges 
of  a  later  day  explained  this  single  use  of  it,  —  not  as 
adding  to  the  text  but  as  merely  evidential.  "The  in- 
tention," said  Lord  Abinger,  for  the  Court  of  Exchequer, 
in  1830,  "shows  what  he  meant  to  do;  and  when  you  know 
that,  you  immediately  perceive  that  he  has  done  it  by  the 
general  words  he  has  used,  which ,  in  their  ordinary  sense, 
may  properly  bear  that  construction."  "The  evidence," 
said  liaron  l\arke,  in  18'iG,^  .  .  .  "only  enables  the  court 
to  reject  one  of  the  subjects  or  objects  .  .  .  and  to  deter- 
mine wliich  of  the  two  the  devisor  understood  to  be  signi- 
fied by  the  description."     "Such  evidence,"  said  the  same 

'  Hampshire  v.  Pierce,  supra,  435. 

2  Doe  il.  Cord  t-.  Needs,  2  M.  &  W.  129. 


THE   "PAROL   EVIDENCE"   RULE.  441 

judge,  in  1833,^  "is  admissible  to  show  (as  Mr.  Amos  prop- 
erly pointed  out)  not  what  the  testator  intended,  but  what 
he  understood  to  be  signified  by  the  words  he  used  in  the 
will."  Wigram  also,^  although  laboring  over  this  class  of 
cases,  comes  out  at  the  same  point:  "The  principle,"  he 
says,  "upon  which  they  proceed,  may,  perhaps,  be  ex- 
plained; for  .  .  .  although  the  words  do  not  ascertain 
the  subject  intended,  they  do  describe  it.  The  person 
held  entitled  in  these  cases  has  answered  the  description 
in  the  will.  The  effect  of  the  evidence  has  only  been  to 
confine  the  language  within  one  of  its  natural  meanings. 
The  court  has  merely  rejected;  and  the  intention  which  it 
has  ascribed  to  the  testator,  sufficiently  expressed,  re- 
mains in  the  will.  .  .  .  Or,  perhaps,  the  more  simple 
explanation  is  that  the  evidence  only  determines  what 
subject  was  known  to  the  testator  by  the  name  or  other 
description  he  used." 

All  this  may,  perhaps,  be  accepted  in  a  general  way, 
namely,  so  far  as  it  means  that  direct  statements  of  inten- 
tion may  really  be  used  as  mere  aids  to  interpretation,  — 
absolutely  as  subordinate  and  auxiliary  to  the  text;  not,  in 
any  way,  as  being  given  an  independent  operation,  but  only 
as  contributing  to  illuminate  the  writing  and  give  to  that 
its  own  true  meaning  and  operation.  This,  as  Lord  Hard- 
wicke  said  of  a  similar  matter,^  "although  it  is  a  nice  dis- 
tinction, yet  it  is  a  distinction  in  the  reason  of  the  thing." 
But,  regarded  as  furnishing  any  solid  ground  of  reason  for 
a  discrimination  between  this  class  of  cases  and  others  it  is 
wholly  unsatisfactory. 

The  true  reason  for  this  distinction  appears  to  be  an 
historical  one.  An  ancient  doctrine  of  pleading  and  sub- 
stantive law  relating  to  documents  containing  an  "equivo- 
cation" in  names,  referred  to   on   a   previous  page,^  was 

1  Richarflson  v.  Watson,  4  B.  &  Ad.  787. 

2  Extr.  Ev.  s.  152. 

^  Goodinge  v.  Goodinge,  supra,  434. 
*  Supi-a,  417. 


442  LAW   OF   EVIDENCE. 

mucti  too  old  and  firmly  rooted  in  the  law  to  allow  of  even 
a  question  about  it,  —  the  doctrine  that  averments  were 
open  in  such  cases,  defences  to  the  regular  operation  of 
the  document,  such  as  were  not  ordinarily  allowed.  This 
doctrine  permitted  (if  not  at  first,  yet  later,  and  as  it  had 
come  to  be  administered  in  the  sixteenth  century)  an  in- 
quiry into  the  real  meaning  of  the  writer,  as  extrinsically 
ascertained.^  And  when  interpretation  came  openly  to  take 
account  of  all  extrinsic  aids,  except  direct  statements  of 
intention;  it  was  then  inevitable  that  an  exception  to  this 
exception  should  be  recognized  in  the  case  of  "equivoca- 
tion;" that  ancient,  continuous,  and  just  class  of  cases 
could  not  be  set  aside, — reason  or  no  reason.  This  his- 
torical connection  of  the  cases  is  clearly  traceable  in  our 
books. 

That  might  seem  to  be  all,  in  the  way  of  explanation, 
that  need  be  said  about  this  sort  of  case.  But  when 
attempts  to  explain  it  are  made  such  as  those  above  indi- 
cated, it  is  well  to  test  them.  It  should  be  remembered 
that  where  a  man's  intention  is  available  his  contemporary 
declaration  is  good  evidence  of  it.^  Hawkins,^  after  quoting 
most  of  the  explanations  above  given,  has  disposed  of  them 
with  a  conclusive  answer.  He  had  been  pointing  out  the 
nature  of  the  process  of  interpretation  in  general,  and 
added  that  this  case  of  eqvii vocation  differs  in  no  essential 
particular  from  any  other  case.  "  What  interpretation 
really  does  in  such  a  case  is  to  give  to  the  words  thaj;  mean- 
ing which  the  writer  intended  that  they  should  have,  .  .  . 
to  add  to  the  name  or  description  that  additional  mark  or 
sign,  whatever  it  be,  which  applies  to  the  person  or  thing 
intended,  and  to  that  person  or  thing  only;  the  description 
is  thus  rendered  a  complete  description,  and  the  words  as 
interpreted  convey  a  meaning  which  in  and  by  themselves 
they  are  insufficient  to  convey.   .   .   .  The  whole   of  this 

1  Supra,  420-423. 

^   Iiifrn,  444. 

3  2  Juriil.  Soc.  Papers,  298. 


THE   "PAEOL   EVIDENCE"   RULE.  443 

reasoning  [referring  to  wliat  is  quoted  above  from  Wigram  ^] 
may  be  answered  in  Sir  James  Wigram's  own  words: 
*To  define  that  whicli  is  indefinite  is  to  make  a  material 
addition  to  the  will.'  The  case  of  two  persons  or  places 
bearing  the  same  name  is  a  case  where  language  is  imper- 
fect: to  adapt  an  illustration  from  John  Stuart  Mill,  a 
name  is  like  the  chalk-mark  put  upon  the  door  in  the  story 
of  'The  Forty  Thieves,'  which  Morgiana  rendered  useless 
by  chalking  all  the  doors  in  the  street  in  precisely  the 
same  manner.  The  result  is  that  to  distinguish  any  one 
door  from  the  other,  an  additional  mark  of  some  sort  must 
be  put  upon  it,  the  mark  originally  used  having  come  to 
mean  either  and  neither  of  the  objects  marked,  any  one 
considered  in  itself,  but  none  as  distinguished  from  the 
others.  It  is  not  true  to  say,  with  Lord  Abinger,  that 
Avhen  you  know  what  the  writer  meant  to  do,  you  perceive 
that  he  has  done  it:  on  the  contrary,  you  perceive  that 
some  Morgiana,  as  it  were,  has  come  in  to  defeat  his 
intention,  and  has  succeeded  in  defeating  it,  unless  you 
will  permit  some  new  and  additional  mark  to  be  put  on, 
which  will  effectually  distinguish  the  object  of  the  writer's 
intention  from  other  similarly  marked  objects,  the  exist- 
ence of  which  he  was  unaware  of  or  had  forgotten." 

In  point  of  mere  reason,  then,  it  may  be  said,  that,  after 
allowing  for  the  operation  of  rigid  technical  rules,  or 
definitions,  which  leave  no  room  for  the  play  of  actual 
or  presumed  intention,  the  process  of  interpretation  may 
and  should  take  account  of  every  indication  of  the  writer's 
actual  meaning,  not  excepting  his  direct  statements.  And 
that  this  is  not  inconsistent  with  the  rule  that  no  effect  is 
to  be  given  to  what  is  not  expressed  in  the  writing.  The 
court  may  still  be  able  to  say,  and  must  rigidly  hold  itself 
to  saying,  with  Sir  John  Strange,  in  Hampshire  v. 
Pierce,^  that,  after  all  is  said  and  done,  it  finds  the  mean- 
ing imputed  to  the  words,  on  the  face  of  the  document 
itself.     Always  it  must  be  recognized,  where  a  writing  is 

1  Supra,  441.  ^  Supra,  435. 


444  LAAV   OF   EVIDENCE. 

required,  that  a  "sufficient  expression"  is  a  condition 
necessary  to  legal  validity.^  That  this  resort  to  actual 
intention  might  on  principle  always  be  had  is  clear 
enough,  as  the  learned  writer  last  quoted  has  remarked, 
from  the  use  in  our  own  system  of  the  preamble  of  a 
statute  in  interpreting  it,  from  our  own  established  rule  in 
the  case  of  "equivocation,"  and  from  the  fact  that  in  the 
lloman  law  there  was  no  exclusion  of  the  writer's  actual 
intention,  or  of  that  best  and  directest  of  all  evidence  of  it, 
his  own  statement. 

What,  then,  is  the  true  character  of  this  rule  of  our  law 
which  excludes  direct  statements  of  intention  ?  Is  it  a 
rule  of  evidence  ?  or  a  rule  of  construction  or  interpre- 
tation ?  It  would  seem  that  while  it  partakes  of  the  char- 
acter of  both,  it  miist  hold  its  place  as  a  rule  of  evidence. 
If  one  were  to  draw  out  the  whole  proposition  it  would  run 
thus :  While  in  the  interpretation  of  solemn  documents  by 
a  court,  no  meaning  can  be  attributed  to  them  which  the 
words  may  not  legitimately  bear,  and  therefore  full  effect 
must  be  allowed  to  any  rules  of  language  or  of  law  which 
limit  and  fix  their  meaning  and  operation;  and  while, 
subject  to  these  rules,  the  words  of  the  document  should 
be  allowed  to  have  the  meaning  and  operation  which  the 
writer  meant  them  to  have,  and  therefore  the  process  of 
interpretation  should,  subject  to  these  rules,  take  account 
of  the  writer's  actual  intention;  and  wliile  the  process 
of  proving  this  intention  must  be  carried  on  under  the 
ordinary  principles  and  rules  of  the  law  of  evidence,  and 
these  would  ordinarily  allow,  where  intention  was  a  fact  to 
be  proved,  that  it  be  proved  by  a  person's  own  contemporary 
declarations;  ^  nevertheless,  in  the  interpretation  of  solemn 
documents,  this  sort  of  evidence  of  intention  is  not  per- 
mitted,   except    in    the  case    of    equivocation,    where   the 

'  2  .lurid.  Soc.  IVip.  '^2^}.  "  The  law  .  .  .  requires  a  sufficieut,  not  a 
jKM'fcct  expression."     Jh.  .302. 

•^  Mut.  Life  Ins.  Co.  v.  Hillnion,  145  U.  S.  285;  Com.  v.  Trefetheu,  157 
Ma.ss.  180. 


THE   "PAROL   EVIDENCE"   RULE.  445 

description  of  a  person  or  thing  is  "equally  applicable  in 
all  its  parts  "  ^  to  more  than  one.  In  other  words,  while 
it  is  true  that  in  talking  generally  of  the  use  of  intention 
in  aid  of  construction  we  are  not  talking  of  a  question  in 
the  law  of  evidence,  but  of  one  in  the  law  of  construction 
or  interpretation;  namely,  what  is  the  object  of  interpre- 
tation, and  under  what  limitations  is  it  to  be  carried  on  — 
yet  when  we  talk  of  direct  statements  of  intention  we  are 
talking  of  a  certain  kind  of  evidence  of  intention,  and  so 
of  a  special  excluding  rule  of  evidence,  and  of  a  special 
exception  to  this  ordinary  excluding  rule. 

9.  As  regards  all  extrinsic  matter  which  might  help  in 
construing  a  document,  except  direct  statements  of  inten- 
tion, when  such  matter  was  used  merely  as  a  light  to  read 
it  by,  the  courts  by  the  middle  of  the  eighteenth  century 
had  in  a  good  degree  escaped  from  the  bondage  of  the 
earlier  days.  Allowing  extrinsic  matter  thus  freely  to  be 
brought  into  view  and  used,  made  it  impossible  for  any 
man  to  pretend  to  construe  a  fine,  a  deed,  or  a  will  by 
merely  reading  it  over  and  dealing  with  it  grammatically. 
It  became  more  and  more  evident  that  such  a  tiling, 
although  talked  of,  was  never  done  and  never  possible  ; 
and  that  the  recognized  enlargement  of  the  field  of  view, 
in  interj)reting  writings,  like  a  thousand  other  enlarge- 
ments, although  it  might  be  dangerous,  was  necessary. 

Accordingly  it  had  become  possible  for  Wigram  to  lay 
it  solidly  down,  over  seventy  years  ago,^  that,  with  the 
exception  of  direct  statements  of  intention,  no  extrinsic 
fact  relevant  to  any  legitimate  question  arising  in  the 
interpretation  of  writings  and  admissible  under  the  gen- 
eral rules  of  evidence,  could  be  shut  out.  The  fifth  propo- 
sition in  his  little  book  states,  as  regards  wills,  that  in 
order  to  determine  the  donee,  or  the  thing  given,  or  the 

1  Lord  Cairns,  in  Charter  v.  Cliarter,  L.  R.  7  H.  L.  364. 

2  Extrinsic  Evidence  in  Aid  of  the  Interpretation  of  Wills.  In  the 
"  Advertisement  to  the  First  Edition,"  dated  Jan.  1, 1831,  the  writer  states 
that  the  book  was  written  in  1826. 


446  LAW   OF  EVIDENCE. 

quantity  of  interest,  or  any  other  disputed  point  respecting 
which  it  can  be  shown  that  a  knowledge  of  extrinsic  facts 
can  in  any  way  aid  the  riglit  interpretation  of  the  words,  a 
court  may  inquire  into  every  material  fact  relating  to  the 
matter  in  question;  and  that  every  claimant  under  a  will 
has  a  right  to  require  a  court  of  construction  to  place 
itself,  by  examining  extrinsic  facts,  in  the  situation  of  the 
testator  himself.^ 

But  the  full  light  of  this  principle  was  lessened  by  the 
omission  to  discriminate  exactly  between  rules  of  evidence 
and  rules  of  construction,  by  the  acceptance  of  various  too 
rigidly  expressed  principles  or  rules  of  construction,  and 
by  the  inexact  mode  in  which  these  were  sometimes  stated 
and  applied  in  the  cases. 

Of  course,  the  logical  relevancy  of  evidence  is  deter- 
mined among  other  things  by  the  rules  of  construction; 
evidence  ceases  to  be  "  material "  in  the  sense  of  Wigram's 
proposition,  when  the  object  which  it  is  offered  to  promote 
is  made  illegitimate.  In  such  cases  we  remark  that  it  is 
the  rule  of  construction  which  excludes,  and  no  principle 
in  the  law  of  evidence;  and  yet,  carelessly,  the  difficulty 
is  forever  being  rested  on  the  entirely  secondary  ground  of 
admitting  or  excluding  evidence. 

Among  rules  of  construction  thus  taking  effect  in  a  dis- 
guised form  there  has  survived  from  the  older  and  more 
formal  conceptions  a  doctrine,  for  the  most  part,  tacitly 
assumed  and  secretly  operating,  but  kept  alive  by  the  ever 
recurring  desire  to  preserve  the  written  expression  in  its 
full  operation ;  namely,  that  in  looking  into  extrinsic  facts 
in  aid  of  interpretation  you  shall  limit  the  range  of  vision 
as  much  as  possil)le,  and  never  look  at  them  at  all  unless 
it  be  necessary.  Tliis  took  tlie  form,  sometimes,  of  saying 
that  while  you  must  look  outside  in  order  to  ascertain  and 
identify  the  persons  and  things  of  which  the  document 
speaks,  yet,  wlion  this  is  iicconiiilislicd,  3'ou  cannot  look 
farther:  from  th;it  ])oint  on,  tlie  document  must  plainly, 
1  Extriiis.  Evid.  s.  96. 


THE  "PAROL  EVIDENCE"  RULE.        447 

or  at  least  sufficiently,  speak  its  mind  to  a  competent 
lawyer,  who  fixes  his  eyes  on  the  mere  text,  or  else  it  must 
fail  of  its  effect.^ 

Closely  connected  with  this  is  the  alleged  principle  that 
if  the  identifying  process  discovers  among  the  persons  or 
things  to  which  the  text  might  be  applicable  some  one,  and 
only  one,  that  is  aptly  designated,  this  person  or  thing 
alone  can  be  taken  to  answer  the  words. ^  While  cer- 
tain leading  rules  of  construction  are  obviously  sound,  — 
that  prima  facie  the  language  of  a  document  shall  have 
its  natural  and  proper  meaning, — technical  language  its 
proper  technical  meaning,  and  ordinary  language  its  ordi- 
nary meaning;  that  the  document  must  be  construed  as 
a  whole,  and  any  part  be  subject  to  modification  so  as  to 
make  it  consistent  with  the  whole;  and  that  no  meaning 
can  be  attributed  to  the  words  that  they  will  not  bear;  yet, 
short  of  this  last  extreme,  it  is  still  possible  to  make  words 
bear  other  meanings  than  the  usual  and  proper  ones,  in 
order  to  avoid  absurd  or  unreasonable  results.  Just  here 
the  principle  above  mentioned  makes  itself  felt  with 
rigor.  We  are  told  that  if  the  words  of  the  document 
taken  as  a  wliole,  after  the  identifying  process  has  been 
carried  through,  admit  of  an  appropriate  application,  and 
an  application  more  appropriate  to  one  person  or  thing 
than  to  any  other,  it  must  have  that  application ;  and  of 
course  neither  extrinsic  facts  nor  anything  else  can  avail 
to  give  them  any  other.  This  is  the  rule  that  Wigram  ap- 
pears to  express  so  uncompromisingly  in  his  second  propo- 
sition :  "  Where  there  is  nothing  in  the  context  of  a  will  from 
which  it  is  apparent  that  a  testator  has  used  the  words  in 
which  he  has  expressed  himself  in  any  other  than  their  strict 
and  primary  sense,  and  where  his  words  so  interpreted  are 
sensible  with  reference  to  extrinsic  circumstances,  it  is  an 
inflexible  rule  of  construction  »that  the  words  of  the  will 

1  See  Holt,  C.  J.,  iu  Cole  v.  Rawlinson,  supra,  428;  also  Gibbs,  C.  J., 
and  Mansfield,  C.  J.,  infra,  451,  452,  note. 

2  Infra,  452  n.,  000. 


448  LAW   OF   EVIDENCE. 

shall  be  interpreted  in  their  strict  and  primary  sense  and 
in  no  other,  although  they  may  be  capable  of  some  popular 
or  secondary  interpretation."^ 

It  is  said,  also,  that  where  the  text  shows  on  its  face  an 
ambiguity  it  is  incurable;  or,  as  Lord  Bacon  expressed  it, 
"  Amhiguitas  licitens  is  never  holpen  by  averment." 

And  again  it  is  said  that  in  interpretation  no  attention 
can  be  given  to  the  intention  of  the  writer,  but  only  to 
the  meaning  of  the  words,  except  in  the  one  case  of 
"equivocation." 

Now  in  so  far  as  any  of  these  things  are  true,  they 
state  no  rule  of  the  law  of  evidence ;  they  simply  mark  a 
limit  and  a  rule  of  the  substantive  law  in  carrying  on  the 
process  of  construction  or  interpretation.  By  that  process 
some  things  can  be  done  or  attempted,  and  some  cannot. 
In  so  far  as  a  thing  is  forbidden  to  construction,  of  course 
there  is  no  use  in  trying  to  give  evidence  in  support  of  it: 
the  fullest  extrinsic  evidence,  the  most  convincing  and  reg- 
ular aggregation  of  extrinsic  facts,  if  offered  to  support 
an  inadmissible  contention,  is  itself  inadmissible;  but  it 
is  so  because  the  contention  itself  is  out  of  place.  The 
exclusion,  then,  of  extrinsic  evidence,  that  is  to  say  of 
extrinsic  facts  which  are  adapted,  in  their  nature,  to  aid 
the  pure  and  simple  work  of  interpretation,  comes  about 
largely  from  the  limitation  put  by  the  substantive  law 
upon  the  conduct  of  this  work.  It  is  to  be  carried  on 
under  restrictions  and  according  to  rules.  Whatever 
extrinsic  matter  is  kept  out  by  these  rules  is  logically 
irrelevant.  Take,  for  instance,  the  case  of  a  gift  to  the 
testator's  "children,"  when  he  has  children  legitimate  and 
illegitimate.     Facts  tending   very  strongly  to   show   that 

1  Extrins.  I']vi(l.  Prop.  II.  Wigrain  closes  the  sentence  thus:  "And 
althoiii^h  tl)(i  most  conclvisive  evidence  of  intention  to  use  them  in  such 
])i)|)iiliir  or  si'ciindary  sense  he  teiiilered."  In  sayinj^  tliis  lie  means,  hy 
"  evid(!n<'i'  of  inirniidii,"  licre  and  always,  a  particular  kind  of  evidence  of 
iutention,  uauidy,  diiici.  statcincuits  of  intention,  or  wliat  is  tantamount  to 
these.  Wigram  dosirilics  this  (s.  10)  as  "  evidence  which  is  aj)plied  to 
prove  intention  itself  as  an  indci)eiidcnt  fact." 


THE   "PAROL   EVIDENCE"   RULE.  449 

the  testator  meant  to  include  the  illegitimate  children 
are  generally  irrelevant,  because,  prima  faci^,  the  legal 
definition  of  the  term  children  excludes  illegitimates, 
and  therefore  a  contrary  interpretation  is  not  in  general 
legally  allowable. 

10.  Let  me  now  illustrate  the  subject  by  a  consideration 
of  a  few  important  modern  cases. 

(a)  In  a  well-known  case,  early  in  this  century,^  in 
the  Common  Pleas  the  heir-at-law  claimed  in  ejectment 
against  the  devisee,  certain  estates  in  Devonshire.  The 
will  gave  "my  estate  of  Ashton  in  the  county  of  Devon- 
shire." The  testator  had  real  estate  derived  from  his 
father  called  the  "  Youlston  estate,"  and  other  real  estate, 
derived  from  his  mother,  called  the  "Ashton  estate,"  all 
in  Devonshire.  The  plaintiff  claimed  all  of  the  "  Ashton 
estate,"  consisting  of  various  parcels.  There  was  a  parish 
of  Ashton.  Part  of  the  property  claimed  was  a  manor  of 
Ashton,  some  of  which  was  in  Ashton  parish  and  some 
in  another.  Part  of  the  property,  not  in  the  manor  of 
Ashton,  was  in  the  parish  of  that  name;  and  part  of  it, 
not  in  the  said  manor,  was  in  other  parishes  and  at  various 
distances,  up  to  fifteen  miles,  away  from  the  parish  of 
Ashton.  The  defendant  offered  to  show  the  testator's 
instructions  to  the  scrivener  at  the  time  of  making  his 
will,  to  give  the  defendant  his  "Ashton  estate;"  that  the 
testator  used  to  call  the  estate  derived  from  his  father 
the  Youlston  estate,  and  the  one  coming  from  his  mother 
the  Ashton  estate,  or  Ashton  property.  A  series  of  annual 
accounts  of  his  stewards,  beginning  with  1785,  containing 
receipts  of  the  testator,  were  offered,  with  other  evidence, 
to  prove  this  habit.  These  accounts  were  entitled  "for 
Ashton  estate,"  and  included  items  relating  to  the  Ashton 
manor,  and  to  the  other  manors  outside  the  Ashton  parish. 
The  trial  judge  received  this  evidence,  under  the  plaintiff's 
objection,  but  subject  to  the  opinion  of  the  court  in  banc,  — 
the  verdict  (given  for  the  defendant)  to  stand  if  the  evi- 

1  Doe  d.  Chichester  v.  Oxenden,  3  Taunt.  147  (1810). 
29 


450  LAW  OF  EVIDENCE. 

dence  was  rightly  received ;  and  if  it  was  not,  to  be  entered 
for  the  pLaintiff,  the  heir,  for  so  much,  if  any,  as  did  not 
in  the  court's  opinion  pass  by  the  will.  The  court  held 
for  the  plaintiff,  that  only  what  was  in  "the  manor  or 
parish  of  Ashton"  passed  by  the  will. 

This  action  was  brought  in  1809  and  decided  in  1810. 
In  1811  the  devisee  brought  an  action  of  ejectment  in  the 
King's  Bench,  claiming  the  lands  outside  the  parish  of 
Ashton,  and  offered  the  same  extrinsic  evidence.  It 
was  rejected  and  judgment  entered  for  the  defendant. 
On  a  bill  of  exceptions  the  House  of  Lords  afl&rmed  the 
judgment.^ 

Now  in  this  case  suppose  none  of  the  evidence  had 
contained  direct  statements  of  the  testator's  intention; 
undoubtedly  that,  as  the  law  then  stood  and  stands  now, 
should  have  been  rejected.  But  the  discrimination  was 
not  made  in  this  case  between  that  sort  of  evidence  and 
any  other;  the  question  was,  of  admitting  any  extrinsic 
evidence.  "I  do  not  state  the  particulars  of  this  evi- 
dence," said  Gibbs,  C.  J.,  in  delivering  to  the  Lords  the 
opinion  of  the  judges,^  "as  the  question  is  whether  any 
evidence  at  all  can  be  admitted  to  explain  the  bequest." 
That  is  to  say,  no  kind  of  extrinsic  evidence  and  no  amount 
of  extrinsic  evidence  is  available  in  such  a  case;  and  that 
means  that  no  matter  what  the  extrinsic  facts  are,  a  court 
cannot  construe  the  will  as  giving  anything  beyond  "the 
parish  or  manor  of  Ashton."  Suppose  then  it  should  be 
proposed  to  show,  not  merely  that  the  property  in  ques- 
tion was  habitually  called  the  Ashton  estate  by  the  testa- 
tor, but  that  it  was  so  called  by  people  in  general.  That 
is  an  extrinsic  fact  or  extrinsic  evidence.^ 

1  See  P.lacklinr!!,,!.,  as  totliis  case  in  Allj^ood  r.  Hlake,  L.  R.  8  Ex.  160. 

2  Doe  (1.  (.'liicliester  v.  Oxciideii,  4  Dow,  65,  92  (1816). 

8  In  the  Atty.-Gen.  v.  Druintnoiid,  1  Driiry  &  Warren,  356,  367,  et 
seq.  (1842),  FiOrd  CliaiiccHor  Siii^don  in  interpreting  a  deed  containing  tlie 
words  "  (Christian  "  ami  "  Protestant  dissenter,"  said  :  "  The  court  is  at 
liberty  to  in(|nire  into  all  tlie  snrrontiding  circninstancos  whicli  may  have 
acted  upou  the  niiuds  of  tlio  jjersons  by  whom  tiie  deed  or  will  (for  it 


THE  "PAROL  EVIDENCE"  RULE.  451 

The  doctrine  of  the  judges  and  the  House  of  Lords  would 
exclude  that.^  The  rule  of  the  case  is  that  the  words  "my 
estate  of  Ashton  "  mean  the  same  as  "  my  estate  at  Ash- 
ton  ; "  and  therefore,  they  say,  the  question  is  whether, 
"when  lands  at  a  particular  place  are  devised,  extrinsic 
evidence  may  be  received  to  show  that  the  devisor  included 
lands  out  of  that  place."  The  reason  for  saying  that  it 
cannot  is  given  thus :  "  The  courts  of  law  have  been  jealous 
of  the  admission  of  extrinsic  evidence  to  explain  the 
intention  of  a  testator.  .  .  .  It  is  of  great  importance  that 
the  admission  of  such  extrinsic  evidence  should  be  avoided 
where  it  can  be  done,  that  a  purchaser  or  an  heir-at-law 
may  be  able  to  judge  from  the  instrument  itself  what  lands 
are  or  are  not  affected  by  it."  In  this  case  there  is  other 
property  at  Ashton  which  satisfies  the  description.  "I 
know,"  says  the  Chief  Justice,  "only  of  one  case  in  which 
it  [extrinsic  evidence  to  explain  the  intention  of  a  testator] 
is  permitted,  that  is,  where  an  ambiguity  is  introduced  by 
extrinsic  circumstances.  There,  from  the  necessity  of  the 
case,  extrinsic  evidence  is  admitted  to  explain  the  ambigu- 
ity. [Then  he  mentions  the  case  of  a  gift  of  an  estate 
of  Blackacre,  where  there  are  two  of  them,  and  a  gift  to  a 
man's  son,  John  Thomas,  where  there  are  two  of  them;  in 
which  cases  'from  the  necessity  of  the  case  evidence  is 
admitted  to  explain  the  ambiguity.']  And  so  also  if  one 
devises  to  his  nephew,  William  Smith,  and  has  no  nephew 

matters  not  whether  it  was  one  or  the  other)  was  executed.  .  .  .  The 
court  therefore  has  not  merely  a  right,  but  it  is  its  duty  to  inquire  into 
the  surrounding  circumstances,  before  it  can  approach  tlie  construction  of 
the  instrument  itself.  .  .  .  One  of  the  counsel  for  the  defendants  .  .  .  says 
you  are  not  at  liberty  to  receive  any  parol  evidence  whatever.  .  .  .  He 
absolutely  denies  my  right,  as  a  judge,  to  receive  parol  or  extrinsic  evi- 
dence at  all,  and  then  he  gives  me  parol  evidence  as  to  the  meaning  of  the 
term  '  Protestant  dissenter.'  He  produces  acts  of  Parliament.  .  .  .  This  is 
in  my  opinion  very  proper  evidence,  but  is  it  not,  for  the  purpose  for  which 
it  is  produced,  parol  evidence  1  What  is  usage  but  parol  evidence  ?  It 
is  parol  evidence  of  facts  in  order  to  construe  the  deed." 

^  Lord  Eldon's  final  opinion  (and  no  other  was  given  on  the  part  of 
the  Lords)  simply  concurred  in  that  of  Gibbs,  C.  J.,  for  the  judges. 


452  LAW   OF   EVIDENCE. 

answering  tlie  description  in  all  respects,  evidence  must  be 
admitted  to  show  which  nephew  was  meant  by  a  descrip- 
tion not  strictly  applying  to  any  nephew.  The  ambiguity 
there  arises  from  an  extrinsic  fact  or  circumstance,  and 
the  admission  of  evidence  to  explain  the  ambiguity  is 
necessary  to  give  effect  to  the  will,  and  it  is  only  in  such 
a  case  that  extrinsic  evidence  can  be  received."  ^ 

The  theory  of  this  decision  might  be  given  in  the  lan- 
guage of  the  Chief  Justice,  in  an  earlier  very  similar  case," 
where  the  court  was  equally  divided,  namely,  "the  ques- 
tion will  be  whether  the  words  .  .  .  are  so  descriptive  of 
locality  as  to  preclude  the  admissibility  of  evidence  that 
the  testator  intended  to  use  them  in  any  other  sense;" 
and  in  the  language  of  Mansfield,  C.  J.,  in  the  first  Oxen- 
den  case,  given  in  a  note  below.  But  it  was  a  principle  of 
construction  that  shut  out  these  extrinsic  facts ;  the  "  evi- 
dence "  (not  discriminating  one  kind  from  another)  was 
rejected  because  it  was  not  relevant  to  any  legitimate  con- 
tention in  the  case.     No  rule  of  evidence  was  in  question. 

(b)  Thirty  years  later  the  House  of  Lords,  in  a  similar 
case,  took  a  different  tone.^  A  testator  had  described  him- 
self as  "  of  Ashford  Hall  in  the  county  of  Salop,"  and  had 
disposed  of  "all  my  estate  in  Shropshire  called  Ashford 

^  In  like  manner,  in  the  earlier  case  (3  Taunt.  147,  156),  the  court 
(Mansfield,  C.  J.),  after  citing  cases  of  two  persons  or  estates  of  the  same 
name  and  of  persons  not  exactly  answering  the  description,  said  :  "It  is 
not  expressly  said  in  any  of  these  cases  that  it  was  necessary  to  receive 
the  evidence  in  order  to  give  effect  to  the  will,  whicli  would  not  operate 
without  such  evidence,  lint  although  this  is  not  said,  yet  the  rule  seems 
to  hold.  It  will  he  found  that  the  will  could  have  had  no  operation, 
unless  the  evidence  had  been  received.  Here,  without  the  evidence, 
the  will  lias  an  effective  operation;  everything  will  pass  under  it  tliat  is 
in  the  manor  or  parish,  or  what  he  would  naturally  call  his  Ashton 
estate.  This  will  lie  an  effective  operation  ;  and,  this  being  so,  the  case 
herein  differs  from  all  the  others;  because  in  them  the  evidence  was 
admitted  to  exjilain  that  which  without  such  explanation  could  have  had 
no  operation.     It  is  safer  not  to  go  beyond  this  line." 

■^  Whitbread  v.  May,  2  B.  &  V.  59.5,  597  (1801 ),  per  Alvauley,  C.  J. 

3  Kicketts  r.  Tnr.juand,  1  II.  L.  C.  472  (1848). 


THE   "PAROL   EVIDENCE"   RULE.  453 

Hall."  On  a  bill  filed  for  the  purpose  of  executing  the 
trust,  the  question  was  whether  only  a  certain  "capital 
messuage  and  mansion  house"  called  Ashford  Hall,  con- 
taining ten  or  twelve  acres,  passed,  as  the  defendant,  the 
heir-at-law,  contended;  or  this  and  other  neighboring 
parcels,  comprising  in  all  about  a  hundred  and  fifty  acres. 
The  court  held  for  the  plaintiffs.  It  was  contended,  on 
the  authority  of  the  Oxenden  case,  that  as  "  Ashford  Hall " 
proper  answered  the  call  of  the  will,  the  words  could  not 
have  a  wider  sense  put  on  them.  But  the  Lord  Chancellor 
(Cottenham)  said :  "  The  plaintiff  ,  .  .  proceeded  in  the 
regular  course  to  prove  the  proposition  which  he  had 
stated;  namely,  that  the  estate  was  used  as  one  estate,  and 
acquired  the  name  from  the  former  proprietor  of  the  Ash- 
ford Hall  estate,  or  the  estate  of  Ashford  Hall,  and  that 
the  testator  had  himself  occupied  it  as  one  estate,  and  had 
himself  called  it  or  described  it  as  the  Ashford  Hall  estate, 
and  that  he  was  in  the  habit  of  so  doing.  Various  instances 
are  brought  to  prove  this  proposition,  and  beyond  all  doubt 
they  do  prove  it."  The  opinion  goes  on  to  say,  that  "over 
and  over  again  "  the  witnesses  say  that  the  testator  did  so 
call  it,  and  they  called  it  so;  that  the  defendant,  the  tes- 
tator's eldest  son,  gives  no  evidence,  and  yet  "nobody 
could  be  more  capable  of  establishing  the  fact  of  his 
father's  intention  in  not  describing  or  intending  not  to 
describe  the  property,  as  alleged  in  the  bill.  ...  It 
appears  that  the  testator  was  in  the  occupation  of  this 
property  as  one  estate,  and  that  he  did  describe  and  call  it 
the  '  Ashford  Hall  estate,'  or  'the  estate  of  Ashford  Hall; ' 
.  .  .  they  both  mean  to  describe  the  same  thing.  More- 
over, there  is  evidence  that  the  heir  in  his  own  dealings 
has  so  described  the  whole  property.  .  .  .  All  we  are  in 
search  of  are  the  terms  by  which  the  testator  was  in  the 
habit  of  describing  the  property.  ...  If  he  describes 
land  in  a  particular  parish  by  a  particular  name,  or  in  a 
particular  locality,  you  cannot  go  into  evidence  to  show 
he  meant  by  the  general  appellation  to  include  something 


454  LAW   OF   EVIDENCE. 

out  of  it;  you  cannot  do  that  without  contradicting  the 
express  terms  used.  Here  is  a  term  which  inchides  more 
or  less  land  according  to  what  was  meant  by  the  term  used, 
and  all  we  are  in  search  of  is  the  particular  meaning  of  the 
expression  which  is  used." 

Of  Doe  d.  Chichester  v.  Oxenden,  Lord  Campbell  said 
(p.  493),  that  "there  the  question  arose  as  to  the  admissi- 
bility of  parol  evidence  with  regard  to  the  construction  of 
a  will,  but  here  parol  evidence  must  inevitably  have  been 
admitted."  It  is  not  clear  what  this  means.  In  both 
cases  the  effort  is  to  find  what  meaning  should  be  imputed 
to  the  testator's  words ;  in  both,  and  in  neither  more  than 
in  the  other  extrinsic  evidence  is  required  to  identify  the 
property.  If  the  range  of  extrinsic  inquiry  is  to  be  limited 
in  one  case  by  the  principle  that  you  can  go  no  further 
when  once  you  discover  property  answering  the  descrip- 
tion in  its  natural  and  ordinary  interpretation,  it  seems  to 
apply  to  the  last  case  as  well  as  to  the  first.  It  will  be 
observed  that  there  were  two  steps  taken  in  the  Oxenden 
case.  First  the  expression,  "my  estate  of  Ashton,"  the 
phrase  actually  used,  is  identified  with  "my  estate  at 
Ashton,"  a  phrase  not  used;  and  second,  it  is  declared 
that  when  the  will  names  an  existing  locality,  and  no 
other,  you  cannot  construe  it  as  including  what  is  outside 
that  locality.  Both  these  propositions  are  qiiestionable. 
In  neither  is  any  rule  of  evidence  involved.  As  a  matter 
of  construction,  why  declare  that  "  my  estate  of  Ashton  " 
means  a  locality,  —  at  Ashton,  —  necessarily  and  under  all 
circumstances?  And  if  it  may,  under  any  circumstances, 
mean  a  description  of  an  estate,  rather  than  the  name 
of  a  locality,  the  aiithority  of  the  later  case  would  admit 
most  of  the  evidence  offered  in  the  first  one. 

(c)  In    1820,   in  an  action   of  ejectment,   both    parties 

claimed  in   the   character   of   devisee.^     The   devisor  had 

three  brothers,  Thomas,  Richard,  and  Matthew;  and  each 

of  them  liad  a  son  named  Simon,  living  at  the  testator's 

1  I)o(-  (i.  Wcstlake  v.  Westlake,  4  B.  &  Aid.  57. 


THE   "PAROL   EVIDENCE"   RULE.  455 

death.  The  will  gave  a  legacy  to  Thomas,  and  another, 
with  a  life  interest  in  a  house,  to  the  daughter  of  Richard, 
—  and  an  annuity  to  the  wife  of  Matthew,  chargeable  on 
her  husband's  share  of  a  tenement  called  Stone;  then 
came  the  devise  in  question,  namely,  "unto  Matthew  West- 
lake,  ray  brother,  and  to  Simon  Westlake,  my  brother's  son, 
all  that  .  .  .  tenement  called  Stone,"  subject  to  certain 
charges.  "  I  likewise  give  .  .  .  unto  Matthew  Westlake, 
my  brother,  and  to  Simon  Westlake,  jointly  and  severally 
alike,  all  other  my  [property  real  and  personal],  and  I 
appoint  them  executors  of  my  will."  The  plaintiff  was 
Simon,  son  of  Matthew.  The  defendant,  Simon,  son  of 
Richard,  insisted  that  by  the  facts  above  named  he  had 
"established  a  latent  ambiguity  in  the  will,"  and  he  offered 
evidence  of  the  testator's  declarations  that  he  meant 
Simon  the  son  of  Richard.  These  were  received,  but, 
nevertheless,  the  verdict  was  for  the  plaintiff.  On  a 
motion  for  a  new  trial,  on  the  ground  that  the  verdict 
was  against  the  evidence,  a  rule  was  refused.  The  court 
(Abbott,  C.  J.)  put  the  opinion  on  the  ground  that  the 
case  was  plain  on  the  construction  of  the  will,  and  that 
it  was  "unnecessary  to  consider  whether  this  verdict  is 
against  the  evidence;"  for  the  declarations  of  the  testator 
should  not  have  been  received.  No  ambiguity  arises  here, 
the  court  said,  because,  "  in  point  of  legal  construction, 
when  the  testator  is  speaking  of  his  brother's  son,  he 
must  be  taken  to  speak  of  the  son  of  that  brother  who 
was  then  particularly  in  his  mind."  Matthew  was  then 
in  his  mind,  and  so  "  Simon  Westlake,  his  son,  must  be  the 
person  intended."  ^ 

This  decision  might,  perhaps,  rest  upon  the  ground,  that 
direct  statements  of  intention  can  only  be  received,  even 
in  cases  of  "equivocation,"  when,  if  they  are  not  received, 
the  document  will  fail  from  uncertainty.  That  presup- 
poses that  the  resources  of  construction,  aided  by  all  ad- 
missible extrinsic  facts,  have  been  first  exhausted.     And 

1  See  Castledon  v.  Turner,  3  Atk.  257  (1745). 


456  LAW   OF   EVIDENCE. 

probably  that  is  the  true  doctrine  about  the  use  of  direct 
statements  of  intention ;  the  danger  and  general  impolicy 
of  resorting  to  them  is  such  as  to  lead  courts  to  postpone 
them,  for  a  last  resort.  And  so,  we  observe  the  phrase- 
ology in  the  Oxenden  case/  that  "the  admission  ...  is 
necessary  to  give  effect  to  the  will;  "  and  in  Wigram/  the 
remark  that,  ''If  the  words  of  the  will  are  applicable  to 
any  subject,  the  court  is  inflexible  in  applying  them 
accordingly.  If  inapplicable  to  any  subject,  the  court 
declares  that  the  will  expresses  no  certain  intention.  It 
is  not  until  this  declaration  is  explicitly  made,  that  the 
question  of  admitting  evidence  of  intention  [i.  e.,  direct 
statements  of  intention^]  is  ever  entertained."  And  so 
Jarman  :  *  "  For  there  is  properly  no  '  ambiguity  '  until  all 
the  facts  of  the  case  have  been  given  in  evidence  and  found 
insufficient  for  a  definite  decision."  Therefore,  if  this 
case  is  to  be  understood  as  holding  that  on  the  facts  actually 
in  evidence  the  construction  was  sufficiently  plain,  and  the 
extreme  situation  which  alone  justifies  a  resort  to  direct 
statements  had  not  been  found  to  exist,  it  seems  a  satis- 
factory decision. 

If,  however,  as  is  not  unlikely,  considering  the  ideas  of 
the  period,  the  case  is  to  be  regarded  as  holding,  generally, 
in  respect  to  all  extrinsic  facts,  — that  the  question  was  to 
be  disposed  of  on  grounds  of  construction  only,  i.  e.,  aided 
only  by  what  had  to  be  introduced  in  order  to  identify 
the  persons  and  things  referred  to,  then  it  is  subject  to  the 
same  sort  of  objection  that  applies  in  the  Oxenden  case 
above  referred  to.  Suppose  it  had  been  possible  to  show 
the  sort  of  facts  that  existed  in  Grant  v.  Grant  ^  and 
Charter  v.  Charter;"  c  r/.,  suppose  that  the  testator  had 
quarrelled  witli  Matthew's  son,  had   had   nothing   to   do 

^  Supra,  452. 

2  Extr  Ev.  ])1.  If)'.*. 

*  Supra,  448  ii. 

*  Wills,  i.  *404-40r),  5th  Eng.  (Otli  Am.)  cd. 
^  Infra,  4f.l.  c  /,tfra,4(i3. 


THE    "PAROL   EVIDENCE"  RULE.  457 

witli  him  for  many  years,  or  did  not  know  that  Matthew 
had  a  son;  and  that  Richard's  son  had  long  lived  with 
him  and  was  much  beloved,  and  had  long  managed  all  his 
business  affairs;  and  that  the  testator  did  not  know  that 
Thomas  had  a  son,  or  that  although  he  knew  of  Thomas's 
son,  he  disliked  him  and  had  never  spoken  with  him. 
Would  such  facts  as  these  be  allowed  to  influence  the 
construction  ?  If  so,  of  course  they  would  be  receivable. 
It  seems  plain,  first,  that,  under  such  circumstances,  you 
could  not  tell  whether  the  construction  actually  given  to 
the  will  was  "sensible  with  reference  to  extrinsic  facts," 
until  you  had  looked  over  these  facts;  and,  second,  that 
you  might  easily  accumulate  such  facts  as  would  require  a 
different  construction. 

(d)  Another  leading  case  is  that  of  Abbott  v.  Middleton,^ 
where,  in  a  suit  in  equity  to  ascertain  the  construction  of 
a  will,  the  House  of  Lords  affirmed  a  decision  of  the 
Master  of  the  Rolls;  Lords  Cran worth  and  Wensleydale 
dissenting.  The  testator  had  given  an  annuity  of  £2,000 
to  his  wife,  and  had  set  apart  personal  property  to  provide 
it.  On  her  death  his  son  was  to  have  the  interest  of  this 
fund  for  life,  and  on  his  death  the  principal  was  to  go  to 
his  children  in  such  sums  as  he  should  by  will  direct. 
"  But  in  case  of  my  son  dying  before  his  mother,  then  and 
in  that  case  "  the  principal  was  to  be  divided  between  the 
children  of  the  testator's  daughters.  Specific  gifts  of 
money  were  made  to  his  only  surviving  daughter;  and  also 
to  the  children  of  daughters  deceased;  with  the  right  of 
survivorship.  To  his  daughter  the  gift  ran  "the  sum  of 
[etc.]  the  interest  .  .  .  for  her  sole  benefit  during  her 
life,  and  the  principal  on  her  demise  "  to  go  to  her  chil- 
dren equally.  "  And  in  the  event  of  her  not  leaving  issue, 
then  and  in  that  case  I  will  that  it  shall  become  the 
property  of,"  etc.  The  son  was  residuary  legatee  of  "all 
property  not  disposed  of  in  this  document,"  and  the  wife 
and  son  were  executors. 

1  7  H.  L.  C.  68  (1858). 


458  LAW   OF   EVIDENCE. 

The  will  was  made  at  the  Cape  of  Good  Hope  in  March, 
1834,  The  son,  a  captain  in  tlie  British  army,  was  then 
unmarried;  but  he  married  in  July,  1834,  had  a  son  born 
in  May,  1835,  and  was  himself  killed  in  the  battle  of 
Inkermann  in  November,  1854.  The  testator  died  in  Jan- 
uary, 1855,  and  the  testator's  wife  died  soon  afterwards. 

One  of  the  testator's  granddaughters  filed  a  bill  against 
the  above  named  grandson  and  others,  praying  the  execu- 
tion of  the  will;  and  the  Master  of  the  Kolls,  in  April, 
1856,  held  that  in  the  events  that  had  happened,  the 
grandson  above  named  took  a  vested  interest  in  the  prin- 
cipal of  the  fund  aforesaid  subject  to  the  widow's  life 
interest. 

The  Lords,  in  supporting  the  decision  of  the  Master  of 
the  Rolls,  were  divided  three  to  two.  The  four  opinions 
reported  were  equally  divided.  Lords  Chelmsford  (Chan- 
cellor) and  St.  Leonards  found  in  the  document,  taken  as 
a  whole  and  construed  in  the  light  of  the  facts,  a  purpose 
to  provide  primarily  for  the  benefit  of  the  son  and  the 
son's  children,  if  he  should  have  any;  and  they  read  the 
clause  "in  case  of  my  son  dying  before  his  mother,"  as  if 
it  had  added  "  without  leaving  a  child."  Lord  St.  Leonards 
found  no  difficulty  in  collecting  the  testator's  general 
intention  from  the  whole  will  taken  together.  "You  are," 
he  said,  "by  settled  rules  of  law,  at  liberty  to  place  your- 
self in  the  same  situation  in  which  the  testator  himself 
stood.  You  are  entitled  to  inquire  about  liis  family,  and 
the  position  in  which  he  is  placed  with  regard  to  his 
property."  He  doiibted  whether  in  this  particular  case 
the  amount  of  the  property  could  be  looked  at.  But  the 
Chancellor  did  consider  that. 

Lord  Cran worth  and  liis  associate,  in  taking  the  other 
view,  declared  that  tlu^  words  used  here  were  perfectly 
plain  and  s('iisil)le  in  their  ordinary  meaning,  and  denied 
any  right,  under  tliese  circumstances,  to  impute  to  them 
any    other.      "The    question    is,"    said    Lord    Cranworth,^ 

1  p.  88. 


THE   "PAROL   EVIDENCE"   RULE.  459 

"whether  we  can  discover  from  the  intention  evinced  in 
this  will  an  absolute  necessity  for  interpolating  the  words 
'  without  leaving  issue '  or  for  construing  the  words  used 
as  meaning  that.  .  .  .  Every  will  must  by  law  be  in  writ- 
ing, and  it  is  a  necessary  consequence  of  that  law  that  the 
meaning  must  be  discovered  from  the  writing  itself,  aided 
only  by  such  extrinsic  evidence  as  is  necessary  in  order  to 
understand  the  words  which  the  testator  has  used.  No 
extrinsic  evidence  can  be  necessary  here  for  such  a  pur- 
pose, except  the  fact  that  the  son  was  a  bachelor,  if  indeed 
that  is  necessary."  If  the  testator's  intention  really  was 
that  the  son's  children  should  not  take  unless  he  survived 
his  mother,  "  he  could  not  more  aptly  have  expressed  what 
he  intended."  The  only  reason  for  interpreting  the  words 
otherwise  is  a  persuasion  "that  he  meant  to  say  something 
different  from  that  which  he  has  said.  ...  If  the  words 
used  are  unambiguous,  they  cannot  be  departed  from 
merely  because  they  lead  to  consequences  which  we  regard 
as  capricious,  or  even  harsh  and  unreasonable."  There  is 
no  ambiguity  here,  and  the  only  question  is  whether  on 
the  face  of  the  will  we  can  say  that  the  words  "  without 
leaving  issue  "  must  be  supplied.  Lord  Wensleydale  admits 
that  the  strict  construction  would  probably  disappoint  the 
real  intention  of  the  testator,  but  he  quotes  from  Wigram, 
saying  that  the  only  question  is  "  what  that  which  he  has 
written  really  means."  It  is  the  rule  that  the  words  used 
must  have  their  "ordinary  and  grammatical  sense,  .  .  . 
unless  some  obvious  absurdity,  or  some  repugnance  or 
inconsistency  with  the  declared  intentions,  ...  to  be 
extracted  from  the  whole  instrument  should  follow  from  so 
reading  it. "  No  such  result  appears  here.  The  words  are 
clear.  That  he  meant  anything  different  from  their  plain 
meaning  is  conjecture  merely.  You  must  make  out  an 
inconsistency  with  the  context  and  a  declared  intention  so 
plain  as  to  enable  you  to  add  the  words  necessary  to  recon- 
cile them.  "But  you  certainly  cannot  find  any  context 
here  which  will  have  that  effect.     The  Master  of  the  Rolls 


460  LAW   OF   EVIDENCE. 

thinks  he  can  see  a  repugnance  between  the  gift  to  the 
children  and  the  condition  to  take  it  away,  and  therefore 
introduces  the  words  '  without  issue ; '  but  I  see  no  such 
inconsistency." 

Now  the  differences  between  the  Lords  here  seem  to 
be:  1.  As  to  the  discovery  of  a  general  intention  on  the 
whole  will  clear  enough  to  govern  the  form  of  the  particu- 
lar expressions  in  question,  i.  e.,  as  to  the  actual  interpre- 
tation of  this  document  as  a  whole;  2.  As  to  the  scope 
and  real  nature  of  the  rule  of  construction,  stated  in 
Wigram's  second  proposition;  or,  as  to  the  degree  of  strict- 
ness with  which  it  is  to  be  understood  and  applied;  and 
8.  As  to  the  range  of  allowable  inquiry  among  extrinsic 
facts.  Lord  Cranworth  says  that  you  are  only  to  look  at 
extrinsic  facts  so  far  as  is  necessary  to  enable  you  to 
understand  the  words  used,  and  that  here  no  extrinsic  fact 
is  "necessary,"  except  that  the  son  was  a  bachelor,  if  even 
that  is  necessary.  But  certainly  the  extrinsic  facts  that 
there  was  a  wife  and  a  son,  and  a  son's  son,  and  that  the 
first  survived  her  son  and  her  husband,  were  extrinsic 
facts,  not  to  mention  others,  that  it  was  "necessary"  to 
look  at.  And  hardly  less  certain  can  it  be,  in  point  of 
reason,  that  because  you  can  find  a  clear  meaning  when 
you  have  looked  at  half  the  extrinsic  facts,  you  are  not 
justified  in  attributing  that  to  the  document,  when  look- 
ing at  all  of  them  would  clearly  give  it  another  meaning. 
Of  this  case  it  seems  to  be  true,  as  a  learned  writer  has 
said,  that  "the  remainder  of  the  will  contained  nothing 
al)Solutely  inconsistent  witli  the  literal  construction;  and 
the  circumstances  of  the  testator's  property  presented  no 
difficulty  in  carrying  out  the  provision  so  understood. 
The  construction  whicli  })revailed  de])oiul(Hl  on  an  infer- 
ential interpretation,  in  whicli  the  (nrcui.istances  of  the 
testator,  as  detei'iuincd  by  (extrinsic  cvidcnco.  were  un- 
doubtedly elements  of  consideration."  '     And  in  I'eference 

'  Nicliols,  2  .Iiiriil.  Soc.  I';i[).  ar)!,  .•!72.  Tin- writer,  liko  ITawkiiis 
Ixifon!  liim,  uses  tlic  jiliraso  "  iiifcrciitiiil  (or  l()<:;i(,';il)  iiiturjjrctatiuu "  as 
coutra-stcd  witli  a  inensly  "  graimnatical  iiitcrprctatiou."     Infra,  588. 


THE   "PAROL   EVIDENCE"   RULE.  461 

to  the  questions  raised  by  this  case,  the  same  sagacious 
writer  well  observes  :  ^  "  An  interpreter,  unimpeded  by  the 
alleged  rule  that  the  strict  and  primary  meaning  must, 
if  sensible  with  reference  to  extrinsic  circumstances,  be 
inflexibly  adhered  to,  may  well  consider  that  of  two  con- 
tending constructions  the  one  is  more  proper,  more  strictly 
grammatical,  without  denying  that  the  words  will  admit 
the  other  signification :  he  may  also  perceive  that  the 
strictly  grammatical  sense  would  not,  if  adopted,  be  alto- 
gether ineffectual,  or  lead  to  an  absolutely  absurd  result; 
but  the  greater  convenience  of  the  opjiosing  construction, 
and  its  more  perfect  harmony  with  the  conception  which 
he  has  formed  of  the  testator's  plan,  may  convince  him 
beyond  doubt  that  the  less  proper  sense  of  the  words  is  the 
true  meaning  of  the  testator.  Is  it  expedient  that  he 
should  be  debarred  from  this  conclusion,  and  forced  to 
adopt  the  sense  most  in  accordance  with  grammatical  pro- 
priety, provided  it  is  not  altogether  incompatible  Avith  the 
facts  ?  Is  this  supposed  rule  of  the  English  law  in  fact 
observed  by  our  own  courts  ?  " 

(e)  There  is  no  lack  in  our  cases  to-day  of  attempts  to 
follow  the  over-rigid  doctrines,  and  the  confused  and  in- 
accurate conceptions  and  phraseology  of  an  earlier  period. 
But  a  sufficient  body  of  precedents  has  accumulated  to 
support  juster  and  truer  doctrines. 

Grant  v.  Grant ^  is  such  a  case;  where  the  Court  of 
Exchequer  Chamber,  upon  a  consideration  of  the  extrinsic 
facts,  construed  "my  nephew,  Joseph  Grant,"  to  mean  not 
the  testator's  own  nephew  of  that  name,  but  his  wife's 
nephew,  Joseph  Grant.  "The  facts  disclosed  by  the  evi- 
dence set  out  in  .  .  .  the  special  case,"  said  Blackburn, 
J.,  "  are  abundantly  sufficient  to  satisfy  any  rational 
person  that  the  testator  intended  to  leave  the  estate  to  his 
wife's  nephew.  But  Mr.  Quain  insists  that  it  is  an  in- 
flexible principle  of  law,  that  if  the  words  of  the  will  have 
a  strict  primary  sense,  evidence  is  not  admissible  to  show 

1  Nichols,  2  Jurid.  Soc.  Pap.  371.  2  l.  R.  5  C.  P.  727  (1870). 


462  LAAV   OF   EVIDENCE. 

that  the  testator  meant  to  use  them  in  any  other  sense." 
This  suggestion  is  dismissed  with  the  remark  (accom- 
panied by  an  examination  of  the  cases)  that  "most  if  not 
all "  the  cases  cited  in  support  of  it  were  cases  of  what 
Wigram  calls  "evidence  of  intention,"  i.e.,  of  direct 
statements  of  intention;  and  he  adds  that  "there  was 
ample  explanatory  evidence  to  warrant  the  judgment  of 
the  court  below," 

(/)  Take,  again,  a  case  entitled  Allgood  v.  Blake,  ^  where 
in  four  actions  of  ejectment  the  parties  were  represented 
by  the  ablest  counsel.  In  the  Exchequer  Chamber,  Black- 
burn, J.,  in  giving  the  opinion  of  the  court,  after  stating 
that  in  construing  a  will  the  court  is  to  put  itself  in  the 
testator's  position,  to  consider  all  the  material  facts  and 
circumstances  known  to  him  with  reference  to  which  he  is 
to  be  taken  to  have  used  his  words,  and  then  to  declare 
"what  is  the  intention  evidenced  by  the  words  used  with 
reference  to  those  facts  and  circumstances  which  were  (or 
ought  to  have  been)  in  the  mind  of  the  testator  when 
he  used  those  words,  —  quotes  Wigram 's  language  as 
to  the  question  being  not  what  the  testator  meant,  but 
the  meaning  of  his  words,  and  adds:  "But  we  think 
that  the  meaning  of  words  varies  according  to  the  cir- 
cumstances of  and  concerning  which  they  were  uttered. 
...  The  general  rule,  we  believe,  is  undisputed  that,  in 
trying  to  get  at  the  intention  of  the  testator,  we  are  to 
take  the  whole  of  the  will,  construe  it  altogether,  and  give 
the  words  their  natural  meaning,  unless,  when  applied  to 
the  subject-matter  which  the  testator  presumably  had  in 
his  mind,  they  produce  an  inconsistency  with  other  parts  of 
the  will,  or  an  absurdity  or  inconvenience  so  great  as  to 
c.iuivinee  tlie  court  tliat  tlie  words  could  not  have  been  used 
in  their  ])roper  siguilication.  .  .  .  To  one  mind  it  may 
appear  that  an  effec;t  produci^l  by  construing  the  words 
literally  is  so  inconsistent  with  the  rest  of  the  will,  or 
produces   an   absurdity   or   inconvenience^    so   great  as  to 

1  L.  R.  8  Ex.  IGO  (1873) ;  s.  c.  below.  L.  K.  7  Ex.  339. 


THE   "PAROL   EVIDENCE"   RULE.  463 

justify  the  court  in  putting  on  them  another  signification, 
which  to  that  mind  seems  a  not  improper  signification  of 
the  words,  whilst  to  another  mind  the  effect  produced  may 
appear  not  so  inconsistent,  absurd,  or  inconvenient  as  to 
justify  putting  any  other  signification  on  the  words  than 
their  proper  one,  and  the  proposed  signification  may  appear 
a  violent  construction.  Grey  v.  Pearson  is  an  example  of 
this.^  Lord  Cranworth,  Lord  St.  Leonards,  and  Lord 
Wensleydale  laid  down  the  general  rules  in  terms  not 
substantially  differing  from  each  other;  but  when  they 
came  to  apply  them  .  .  .  there  was  a  marked  difference  in 
opinion.  We  apprehend  that  no  precise  line  can  be  drawn, 
but  that  the  court  must  in  each  case  apply  the  admitted 
rules  to  the  case  in  hand ;  not  deviating  from  the  literal 
sense  of  the  words  without  sufficient  reason,  or  more  than 
is  justified;  yet  not  adhering  slavishly  to  them,  when  to 
do  so  would  obviously  defeat  the  intention  which  may  be 
collected  from,  the  whole  will." 

{g)  Add  to  these  cases  the  neat  and  excellent  handling 
of  a  difficult  matter  in  the  House  of  Lords,  in  1874,  by 
Lord  Cairns  (Chancellor)  and  Lord  Selborne,  sustaining 
the  decree  below. ^  All  the  Lords  agreed  that  direct  state- 
ments of  intention  were  not  receivable  in  this  case.  "But, 
my  Lords,"  said  the  Chancellor,  "there  is  a  class  of  evi- 
dence which  in  this  case,  as  in  all  cases,  ...  is  clearly  re- 
ceivable. The  court  has  a  right  to  ascertain  all  the  facts 
which  were  known  to  the  testator  at  the  time  he  made  his 
will,  and  thus  to  place  itself  in  the  testator's  position,  in 
order  to  ascertain  the  bearing  and  application  of  the 
language  which  he  uses;  and  in  order  to  ascertain  whether 
there  exists  any  person  or  thing  to  which  the  whole  descrip- 
tion given  in  the  will  can  be,  reasonably  and  with  suffi- 

1  6  H.  L.  C.  61  (1857).  In  this  case  Lords  Cranworth  (Chnnccllor)  and 
Wensleydale  reasoned  as  they  did,  a  year  later,  in  Abbott  v.  Middletou  ;  and 
so  did  Lord  St.  Leonards,  who  now,  in  the  earlier  case,  was  the  dissenter. 

2  Charter  v.  Charter,  L.  R.  7  H.  L.  364;  Lords  Chelmsford  and 
Hatherley  holding  differently. 


464  LAW  OF  EVIDENCE. 

cient  certainty,  applied."  And  thereupon  follows  a  full 
consideration  of  all  the  extrinsic  facts  that  were  relevant 
to  the  questions  in  dispute.  "The  case,  therefore,  appears 
to  me  to  become  one  of  those  in  which  there  is  an  erroneous 
or  inaccurate  name,  and  a  description  or  demonstration 
sufficiently  cleai*to  correct  the  inaccuracy."  Lord  Selborne 
remarked,  "  The  moment  we  find  sufficient  reason  to 
conclude  that  there  is  really  error  in  the  name,  the  obser- 
vation .  .  .  that  '  we  are  always  bound  to  assume  that  the 
language  of  the  will  is  the  language  of  the  testator '  ceases 
to  be  material.  It  is  then  .  .  .  part  of  the  case  that  a 
mistake  has  been  made." 

(h)  Another  case  may  be  mentioned,  that  of  In  re  The 
Wolverton  Mortgaged  Estates,^  where  a  testator  be- 
queathed £600  in  trust  to  pay  the  income  to  his  daughter 
for  life,  and  at  her  death  to  her  children  by  any  husband 
"other  than  and  except  Mr.  Thomas  Fisher,  of  Bridge 
Street,  Bath;  and  subject  thereto,  to  the  testator's  son. 
In  Bridge  Street,  Bath,  at  the  date  of  the  will,  there  lived 
a  Mr.  Thomas  Fisher,  fifty  years  old,  with  a  wife  and 
family;  one  of  his  sons  was  named  Henry  Tom  Fisher,  a 
commercial  traveller,  often  at  the  father's  house,  who  had 
paid  his  addresses  to  the  daughter.  In  the  year  after  her 
father's  death  the  daughter  married  young  Fisher.  She 
had  a  child  by  him,  and  now  the  question  was  whether  this 
child  was  entitled  to  the  benefit  of  the  fund.  The  child 
was  held  not  entitled.  In  other  words,  Henry  Tom  Fisher 
was  held  to  be  meant  by  the  will  and  not  his  father. 

In  such  a  case  as  this,  was  a  rule  to  be  applied  which, 
in  looking  outside,  excluded  from  view  all  else,  when 
once  the  father  was  discovered  ?  Perhaps  there  might  be 
another  "Thomas  Fisher,  of  Bridge  Street,  Bath,"  — 
another  one  exactly  answering  the  call;  aiul  such  a  case 
must  certainly  be  allowed  for.  In  tlie  search  for  such  a 
person  tlie  son  Henry  Tom  wonld  come  to  light.     When 

1  7  f'h.  Div.  l'.)7  (IH77)  ;  k.  c.  .'JT  L.  T.  K.  .'57.3,  47  L.  J.  Ch.  127,  26 
W.  R.  i;J8. 


THE  "PAROL  EVIDENCE"  RULE.  465 

he  did,  was  he  to  be  disregarded  ?  Certainly  the  father 
exactly  answers  the  language  of  the  will  and  the  son  does 
not;  and  it  is  not  absolutely  irrational  to  apply  the  will 
to  the  father,  for  it  is  conceivable  that  the  testator  might 
have  feared  future  entanglements  between  him  and  the 
daughter,   with  or  without  reason  for  his  fears. 

Observe  the  way  in  Avhich  the  court  (Malins,  V.  C.) 
reached  its  conclusion.  "  The  executors  could  not  believe 
that  Mr.  Thomas  Fisher,  a  married  man,  was  really  in- 
tended by  the  testator.  .  .  .  They  inquired  further  and 
found  a  son  of  his,  Henry  Tom  Fisher,  who,  by  the  name 
of  Tom  Fisher,  was  known  to  the  testator.  '  Thomas  '  and 
*  Tom '  are  generally  forms  of  the  same  name,  and,  though 
Tom  was  here  the  son's  Christian  name,  the  names  of 
Thomas  and  of  Tom  being  in  reality  only  forms  of  the 
same  name,  it  is  necessary  to  adduce  parol  evidence  of  the 
state  of  circumstances  in  which  the  testator  stood  when  he 
made  his  will,  to  ascertain  which  of  the  two  Fishers  he 
meant;  and  to  assume  that  he  meant  the  father,  Thomas 
Fisher,  a  man  then  of  fifty  years  of  age,  with  a  wife  and 
family,  is  ridiculous.  Tom  Fisher  had  been  paying  atten- 
tions to  the  testator's  daughter,  and  he  strongly  objected 
to  her  marriage  with  him.  .  .  .  Then  again  the  two 
Fishers  had  the  same  home,  and  it  was  quite  competent 
for  the  executors  to  adduce  parol  evidence  to  prove  which 
of  those  two  persons  was  really  within  the  testator's 
contemplation.  .  .  .  No  doubt  where  one  person  accurately 
fulfils  the  description,  and  no  one  else  does,  you  cannot 
admit  parol  evidence  to  show  that  such  person  was  not 
intended;  but  here  there  are  tAvo  persons  who  substan- 
tially, though  not  with  perfect  accuracy,  come  within  the 
description  of  Thomas  Fisher  of  Bridge  Street." 

Doubtless  this  was  not  a  case  of  equivocation,  and  so 
not  a  case  for  direct  statements  of  intention.^  It  appears, 
then,  to  be  a  case  which,  in  applying  the  rule  of  Wigrani's 

1  Charter  v.  Charter,  L.  R.  7  H.  L.  364 ;  Doe  d.  Hiscocks  v.  Hiscocks, 
5  M.  &  W.  363. 

30 


466  LAW  OF  EVIDENCE. 

second  proposition,  holds  it  only  applicable  when  you  have 
fully  examined  all  relevant  extrinsic  facts;  and  decides 
that  when  these  disclose  a  high  improbability  that  the  will 
really  means  the  person  who  is  exactly  designated,  he  may 
give  place  to  another,  not  exactly  indicated,  but  suffi- 
ciently so  to  take  if  he  stood  alone. 

(i)  Finally,  let  me  mention  a  hard-fought  case  in  the 
Supreme  Court  of  the  United  States,  in  1886,  where 
the  court,  reversing  its  own  previous  decision,  followed 
the  same  principles.^  A  testator  devised  to  his  brother 
"  lot  numbered  six  in  square  four  hundred  and  three, "  on 
a  well-known  plan  of  the  city  of  Washington.  There  was 
such  a  lot,  belonging  to  another  person.  The  testator 
did  not  own  or,  so  far  as  api:)ears,  contemplate  owning  it. 
He  did  own  lot  three  in  square  four  hundred  and  six;  and 
the  question,  as  stated  in  the  opinion  of  the  court  (Bradley, 
J.),  was  "whether  the  parol  evidence  offered,  and  by  the 
court  [below]  provisionally  received,  was  sufficient  to  con- 
trol the  description  of  the  lot,  so  as  to  make  the  will  apply 
to  lot  number  3  in  square  40G."  A  minority  of  four  judges 
declared  that  this  was  "an  unambiguous  devise,"  and 
stated  their  doctrine  thus:  "If  there  is  any  proposition 
settled  in  the  law  of  wills,  it  is  that  extrinsic  evidence  is 
inadmissible  to  show  the  intention  of  the  testator,  unless 
it  be  necessary  to  explain  a  latent  ambiguity;  and  a  mere 
mistake  is  not  a  latent  ambiguity.  Where  there  is  no 
latent  ambiguity,  there  no  extrinsic  evidence  can  be  re- 
ceived." The  fact  "that  the  testator  did  not  own  the  lot 
described  in  the  devise,  but  did  own  another  which  he  did 
not  dispose  of  by  his  will  .  .  .  does  not  tend  to  show  a 
latent  ambiguity.  It  does  not  tend  to  imi^ign  the  accuracy 
of  the  description  contained  in  the  devise.  It  only  tends 
to  show  a  mistake  on  the  ])art  of  the  testator  in  drafting 
liis  will.     This  cannot  be  cured  by  extrinsic  evidence." 

The  theory  involved  in  tliese  statements  appears  to  be 
that  when  tlie  language  of  the  will,  after  persons  and 
'  Piitclii;.  Wliito,  117  U.  S.  110. 


THE   "PAROL  EVIDENCE"  RULE.  467 

things  named  in  it  are  identified,  is  susceptible,  in  point 
of  name  and  description,  of  an  exact  application  to  an  ex- 
isting tiling  or  person,  and  only  to  one,  it  can  have  no 
other,  no  matter  how  admissible  in  itself  or  how  probable 
another  construction  might  be,  in  case  this  exactness  of 
application  did  not  exist;  and  no  matter  how  irrational  the 
adopted  construction  may  be. 

The  court,  on  the  other  hand,  began  by  looking  into  all 
the  facts.  They  found,  from  the  will,  that  the  testator 
was  intending  to  dispose  of  all  his  estate;  that  in  giving 
the  residue  he  thought  that  he  had  disposed  of  all  his  real 
estate,  except  what  the  residuary  clause  dealt  with,  since 
therein  he  called  it  "  the  balance  of  my  real  estate  believed 
to  be  and  to  consist  in,"  etc.;  that  he  was  meaning  to 
give  a  lot  which  he  then  owned,  and  that  he  meant  to  give 
a  lot  with  improvements.  It  was  found  that  the  lot 
actually  named  had  no  improvements  on  it,  and  the  lot 
supposed  to  be  meant  had  them.  They  also  found  that 
lot  three  was  not  disposed  of  by  the  testator's  will,  unless 
it  passed  by  the  clause  in  question.  And  they  also  found, 
that  on  leaving  out  the  false  description  enough  remained 
to  identify  the  subject  of  the  gift.  The  reasoning  of  the 
minority  in  the  case  just  referred  to  is  what  the  court  puts 
forward  in  the  well-known  case  of  Kurtz  v.  Hibner,^  where 
a  testator,  owning  only  one  eighty-acre  tract  in  a  certain 
township,  had  called  it  section  thirty-two  by  mistake, 
when  it  really  was  section  thirty-three.  In  holding  that 
the  true  section  did  not  pass  by  the  will,  the  court  said: 
"There  is  no  ambiguity  in  this  case  as  is  urged.  When 
we  look  at  the  will  it  is  all  plain  and  clear.  It  is  only  the 
proof  aliunde  which  creates  any  doubt,  and  such  proof  we 
hold  to  be  inadmissible."  The  true  view  of  such  a  case 
appears  to  be  that  there  is  no  question  of  ambiguity  in  the 
matter;  there  is  a  mistake;  and  the  question  is  whether 
the  will,  taken  as  a  whole,  admits  of  a  construction  which 
will  correct  the  mistake.  All  extrinsic  facts  which  serve 
1  .5.5  Illinois,  514. 


468  LAW   OF   EVIDENCE. 

to  show  the  state  of  the  testator's  property  are  to  be  looked 
at,  and  then  the  inquiry  is  whether,  in  view  of  all  these 
facts,  anything  passes.^  The  method  of  the  court  in  that 
case  is  justly  discredited.  In  reality  Wigram's  book,  in 
1831,  gave  it  a  death-blow. 

11.  In  turning  from  the  cases  whicli  have  now  been  con- 
sidered, a  few  things  should  be  said,  even  at  the  risk  of 
repetition. 

In  all  cases,  upon  offering  evidence,  two  questions  may 
arise :  one  of  its  logical  relevancy,  and  another  of  its  ad- 
missibility, under  the  excluding  rules  of  evidence.  As 
regards  the  subject  in  hand,  — "parol  evidence,"  the  use 
of  extrinsic  matter  to  affect  documents,  —  there  appears 
to  be  no  peculiar  excluding  rule  of  evidence,  except  that 
which  shuts  out  direct  statements  of  the  writer's  inten- 
tion; and  yet  rules  are  so  expressed  as  to  obscure  the 
matter  and  surround  it  with  mystery.  The  truth  is  that 
the  scope  of  construction  and  interpretation  is,  indeed, 
restricted  by  certain  real  or  imagined  rules,  undertaking 
to  fix  what  meaning  can  and  what  cannot  be  given  to 
certain  terms,  and  what  under  certain  conditions  can,  and 
what  cannot,  be  done.  As  is  true  in  all  other  cases,  these 
restrictions  of  substantive  law  determine  the  relevancy  of 
what  is  offered  in  evidence.  It  is  said,  truly,  that  there 
are  two  questions :  first,  whether  "  the  words  are  sensible 
as  they  stand;  and,  if  [not],  whether  their  meaning  is 
clear  in  any  other  sense."  Or,  as  it  is  elsewhere  put, 
"  whether  tlie  words  .  .  .  with  reference  to  the  facts, 
admit  of  being  construed  in  their  primary  sense;  and  [if 

1  C'Dinpare  Ncwburffli  i;.  Newl)urgh,  Suf^rleu,  Law  of  Property,  .1f)7  ; 
8.  c.  .')  Madd.  .364;  Thayer's  Cases  on  Evidence,  847,  031-933;  Fonnereau 
V.  Poynt/,,  1  Br.  C.  C.  472.  In  the  excellent  case  of  Hart  v.  Tnlk,  2  De  O., 
McN.  &  (i.  300,  the  words  "the  fourth  schedule"  were  read  as  meaning 
"  the  fifth  schedule,"  upon  a  consideration  of  all  the  facts  and  the  con- 
struction of  the  whole  document.  Such  cases  as  Tucker  v.  Seaman's  Aid 
Soc,  7  Met.  188,  and  Am.  Bible  Soc.  v.  Pratt,  9  Allen,  109,  rest  well 
enough  on  the  weight  of  the  evidence ;  but  in  dealing  with  the  principles 
now  under  consiih^ation  tlioy  arc  oi)on  to  grave  question. 


THE   "PAROL   EVIDENCE"   RULE.  469 

not]  whether  the  intention  is  certain  in  any  other  sense  of 
which  the  words,  with  reference  to  the  facts,  are  capable.'"  ^ 
This  being  so,  questions  of  the  admissibility  in  evidence 
of  extrinsic  matter,  not  being  direct  statements  of  the 
writer's  intention,  are  to  be  determined,  in  their  order,  by 
the  general  rules  and  principles  that  determine  such  ques- 
tions in  other  cases,  namely,  the  logical  principle  of  rele- 
vancy, and  the  excluding  operation  of  the  general  rules 
of  evidence.  They  are  questions  for  the  court;  and  they 
are  to  be  answered  upon  a  consideration  of  whatever, 
being  relevant  to  the  particular  inquiry,  is  not  excluded  by 
the  general  principles  or  rules  of  evidence.  '^  Whether 
the  words  of  the  will,  with  reference  to  the  facts,  admit 
of  being  construed  in  their  primary  sense;"  or,  as  else- 
where put  by  Wigram,  whether  the  "words  so  interpreted 
are  sensible  with  reference  to  extrinsic  circumstances;" 
is  a  question  that  refers  us  to  the  extrinsic  facts  and  to  all 
of  them  that  can  help;  none  are  excluded,  unless  shut  out 
by  the  ordinary  principles  and  rules  of  evidence.  Before 
you  can  tell  whether  the  facts  allow  of  a  given  construc- 
tion, you  must  know  what  they  are.  In  some  cases  the 
court  will  need  to.  scrutinize  and  weigh  them  all,  and  in 
some  their  search  will  be  very  short.  If  the  words  of  a 
gift  are  phrased  in  technical  terms,  such  as  a  gift  to  a 
man's  "children,"  and  there  are  legitimate  and  illegitimate 
children,  the  range  of  inquiry  may  be  narrow,  for  there  is 
a  rigid  rule  as  to  the  meaning  of  the  term.^  If  the  gift  be 
to  a  man's  "nephew,"  a  less  technical  term,  and  there  are 
nephews  of  himself  and  of  his  wife,  it  may  be  necessary 
to  travel  over  all  the  circumstances  and  relations  of  the 
family. 3  But  there  is  no  peculiar  doctrine  applicable  to 
this  sort  of  question  except  the  one  above  indicated.  In 
settling  it  one  needs  to  ask  only  for  the  substantive  law, 

1  "Wigram,  Ext.  Ev.  pi.  102,  213. 

2  Dorin  v.  Dorin,  L.  R.  7  H.  L.  .568. 

3  Grant  v.  Grant,  L.  R.  5  C.  P.  727  ;  and  compare  Charter  v.  Charter, 
L.  R.  7  H.  L.  364,  per  Lord  Cairns  and  Lord  Selborne. 


470  LAW  OF   EVIDENCE. 

of  real  property  or  wills,  or  what  else  governs  the  subject; 
for  the  rules  of  construction ;  and  for  the  general  rules  and 
principles  of  evidence.  And  it  would  seem  that  no  restric- 
tion upon  the  fulness  of  the  court's  examination  of  ex- 
trinsic facts  can  be  laid  down  which  does  not  grow  out 
of  the  considerations  above  indicated. 

Accordingly  a  learned  and  competent  writer^  has  well 
suggested  that  "it  is  next  to  impossible  to  shut  out  all 
inference  of  intention  [from  extrinsic  facts]  until  the  pos- 
sibility of  accepting  the  terms  in  their  literal  significa- 
tion has  been  determined.  The  rule  which  excludes  an 
inferential  interpretation  of  an  unambiguous  text,  unless 
the  primary  sense  leads  to  an  inconsistency  or  absurdity, 
is  found,  when  liberally  construed,  to  proceed  upon 
premises  which,  from  the  nature  of  the  case,  are  at  the 
outset  in  dispute.  First,  the  words  of  the  text  must  be 
shown  to  admit  only  of  one  meaning;  or,  at  the  least, 
not  to  be  intelligible  in  a  second  sense  without  some 
sacrifice  of  their  ordinary  signification  or  grammatical 
construction.  Secondly,  the  proper  sense  thus  ascertained 
must  be  in  harmony  with  the  context,  and  with  the  entire 
scheme  of  the  instrument.  Thirdly,  as  applied  to  the 
testator's  circumstances,  it  must  lead  to  no  absurdity  or 
glaring  improbability.  Now,  it  is  precisely  upon  these 
three  fields  that  the  battle  of  interpretation  is  fought; 
and  it  is  not  until  the  contest  upon  these  points  is  de- 
cided that  it  is  clearly  seen  how  far  the  principle  is  fairly 
applicable." 

And  the  courts  do,  in  fact,  in  a  great  measure,  proceed 
after  this  method,  they  do,  in  fact,  look  over  all  the  rele- 
vant facts;  for  the  court  is  the  tribunal  which  has  to 
decide  on  the  question  of  construction  and  also  on  the 
cjuestion  of  the  admissibility  of  evidence  to  affect  con- 
struction. Tlic  court  therefore  is,  in  fact,  obliged,  by 
hypothesis  at  any  rate,  to  consider  all  the  extrinsic  facts 

1  F.  M.  Nichols  (the  editor  of  Britton),  in  Extrinsic  Evid.  in  tlie  Inter- 
pretation of  Wills,  2  .lurid.  Soc.  351.  374. 


THE   "PAROL  EVIDENCE"  RULE,  47L 

which  are  offered.  "  If  evidence  manifestly  impertinent 
.  .  .  be  tendered,  the  court,"  said  Wigram,  V.  C,  "is 
bound  at  once  to  reject  it.  .  .  .  Where  the  evidence 
tendered  may  be  material,  the  practice  in  equity  is  usually 
to  admit  it  (as  in  this  case)  in  the  first  instance,  and 
reserve  the  question  of  its  materiality  until  tlie  hearing  of 
the  cause."  ^ 

12,  Something  more  should  be  said  as  to  Bacon's 
maxim.  Every  one  knows  how  much  it  has  figured  in  the 
modern  cases.  But,  at  first,  as  I  have  said,  it  seems  to 
have  lain  for  more  than  a  century  and  a  half  unnoticed  by 
the  profession.  So  far  as  I  have  observed,  it  comes  first 
to  light,  as  a  part  of  our  legal  literature,  in  1761,  in  a 
little  anonymous  book,  "The  Theory  of  Evidence,"  appar- 
ently written  by  Bathurst,  then  a  Justice  of  the  Common 
Pleas,  and  afterwards  the  Lord  Chancellor  Apsley,  —  the 
uncle  of  Buller.  This  work  became  part  six  of  what  we 
know  as  Buller's  "NisiPrius,"  a  book  originally  published 
anonymously,  before  Buller  could  have  written  it,  and,  in 
its  first  edition,  sometimes  called  "Bathurst  on  Trials." 
In  a  slight  attempt  to  give  shape  to  the  rules  of  evidence, 
it  was  said  in  the  "Theory  of  Evidence,"  that  "the  fifth 
general  rule  is,  Amhiguitas  verhomim  latens  verijicatione 
suppletur,  nam  quod  ex  facto  oritur  aynbiguum  verijicatione 
facti  tolUtur  ;^^  and  this  was  accompanied  by  further  quo- 
tations from  Bacon,  and  by  a  few  modern  instances,  com- 
ing down  as  late  as  1751.^  There  is  no  indication  that 
the  writer,  in  thus  exhuming  Bacon's  sixteenth  century 
maxim,  was  aware  how  he  was  mingling  old  conceptions 

1  Saver  v.  Saver,  7  Hare,  377,  380.  And  so  Wig.  Ext.  Ev.  pi.  103. 
See  Lowe  v.  Lord  Huntingtower,  4  Russ.  532  n. ;  s.  c.  Wig.  Ext.  Ev. 
83-89. 

2  There  was,  perhaps,  a  touch  of  the  maxim  in  Jones  v.  Newman,  1  W. 
Bl.  60,  in  1750,  where  there  were  two  John  Clucrs,  and  the  trial  judge  had 
refused  the  offer  to  prove  by  parol  evidence  that  the  testatrix  intended  to 
leave  it  to  John  Cluer  the  son.  In  granting  a  new  trial  the  court  is  re- 
ported as  saying,  "  The  objection  arose  from  parol  evidence,  and  ought  to 
have  been  encountered  by  the  same." 


472  LAW   OF   EVIDENCE. 

with  new  and  very  different  ones.  He  produced  it  now 
as  a  rule  of  evidence,  and  not  of  pleading.  The  great 
name  of  the  author  of  the  maxim  gave  it  credit.  It  seemed 
to  offer  valuable  help  towards  settling  the  troublesome 
question  as  to  how  far  you  could  go  in  looking  at  outside 
facts  to  aid  in  construing  a  written  text.  To  say  that  a 
difficulty  which  was  revealed  by  extrinsic  facts  could  be 
cured  by  looking  further  into  such  facts,  had  a  reasonable 
sound;  and  when  it  was  coupled  with  a  rule  that  you  could 
not  in  any  way  remedy  a  difficulty  which  presented  itself 
on  the  face  of  the  paper,  there  seemed  to  be  a  complete 
pocket  precept  covering  the  whole  subject.  When  this 
was  found  clothed  in  Latin,  and  fathered  upon  Lord 
Bacon,  it  might  well  seem  to  such  as  did  not  think  care- 
fully that  here  was  something  to  be  depended  upon.  The 
maxim  caught  the  fancy  of  the  profession,  and  figured  as 
the  chief  commonplace  of  the  subject  for  many  years.  Al- 
though Wigrara,^  seventy  years  after  it  was  thus  brought 
newly  to  light,  abandoned  the  use  of  it,  and  showed  how 
uninstructive  it  is,  and  although  the  lesson  has  been 
abundantly  repeated  since, ^  yet  it  still  performs  a  great 
and  confusing  function  in  our  legal  discussions. 

Bacon,  when  he  spoke  of  ambiguities  patent  and  latent, 
meant  only  a  limited  sort  of  thing,  namely,  what  he  said, 
ainhvjnlty.  But  now  his  maxim  came,  unfortunately,  to 
be  treated  as  covering  the  entire  subject,  and  was  made  to 
apply  to  all  sorts  of  defects.  It  could  only  do  duty  as  a 
general  exi)Osition  by  being  strangely  misinterpreted  and 
strangely  misapplied,  e.  g.,  to  tlie  question  of  filling  a 
])l;ink  wliich  ;i  testator  had  left  in  liis  will,  or,  as  we  have 
seen,  to  tlu;  correction  of  an  error,  where  one  thing  was 
expressed,  and  another  meant.  If  any  error  of  expression 
was  apparent  on  the  face  of  the  document,  this  was  called 
patent  ambiguity,  and  the  courts  sometimes  undertook  to 
reconcile  the  correction  of  it  with  the  maxim  which  for- 

'  Extriiis.  Kv.  ]il.  1!)(;-210.     The  profaco  is  dated  1st  January,  1831. 
^  Jurmaii,  Wills  (5lli  Loud.  cd.J,  4()()-l()I. 


THE  "PAROL  EVIDENCE"  RULE.  473 

bade  this.  The  maxim  had  another  singular  operation :  it 
was  sometimes  admitted  that  defects  and  errors  were  not 
ambiguities,  and  for  that  reason  they  were  said  to  be 
incurable;  as  when  the  dissenting  opinion  in  Patch  v. 
White, ^  quoting  antiquated  expressions,  says:  "If  there 
is  any  proposition  settled  in  the  law  of  wills  it  is  that 
extrinsic  evidence  is  inadmissible  to  show  the  intention  of 
the  testator,  unless  it  be  necessary  to  explain  a  latent 
ambiguity ;  and  a  mere  mistake  is  not  a  latent  ambiguity. 
Where  there  is  no  latent  ambiguity,  there  no  extrinsic 
evidence  can  be  received."  It  became  common  to  say  that 
after  identifying  the  persons  and  things  named  in  the 
document  by  extrinsic  evidence  the  first  inquiry  must  be 
as  to  the  existence  of  a  latent  ambiguity  as  shown  by  this 
extrinsic  evidence;  and  then,  according  as  this  appeared 
or  not,  more  extrinsic  evidence  was  or  was  not  receivable. 

But  Wigram  accurately  pointed  out  that  the  phrases 
latent  ambiguity  and  patent  ambiguity  were  ignorantly 
used;  that  a  paper  is  not  properly  to  be  called  am- 
biguous simply  because  the  reader  of  it  lacks  the  needed 
and  attainable  outfit  of  skill  and  information  to  read  it; 
that  it  may  be  inaccurate  without  being  ambiguous;  and 
that  if  a  court  can  determine  its  meaning  without  any 
other  guide  than  a  knowledge  of  the  facts  upon  which, 
from  the  nature  of  language,  its  meaning  depends,  it  can- 
not truly  be  called  ambiguous.  And  he  added  that,  "In 
all  cases  the  application  of  the  extrinsic  evidence  to  which 
the  fifth  proposition  refers,  must  precede  any  declaration 
which  a  court  can  have  a  right  to  make  that  a  will  is 
ambiguous."^  "The  evidence  of  material  facts  is,  in  all 
cases,  admissible  in  aid  of  the  exposition  of  a  will."  ^ 

1   117  U.  S.  p.  224.  2  PI.  203. 

3  PI.  212.  The  import  of  the  term  "  material"  is  indicated  at  pi.  98- 
100:  "  In  limiting  the  evidence  .  .  .  to  tlie  material  facts,  the  generality  of 
the  proposition  contended  for,  respecting  the  admissibility  of  explanatory 
evidence  in  aid  of  the  exposition  of  wills,  is  in  no  degree  broken  in  upon. 
This  limit  is  imposed  by  the  general  laws  of  evidence,  and  not  by  any- 
thing peculiar  to  the  subject  to  which  it  is  here  applied. 


474  LAW   OF   EVIDENCE. 

This  remark  seems  to  involve  a  concession  of  what  is 
truly  the  fact,  that  the  real  subject  of  Wigram's  book  is 
not  any  branch  of  the  law  of  evidence,  but  the  law  of  the 
construction  or  interpretation  of  wills ;  and  that  the  title 
of  it  is  misleading. 

13.  In  1833,  between  the  dates  of  the  first  and  second 
editions  of  Wigram's  book,  came  the  decision  in  the  Lord 
Chancellor's  court  of  the  case  of  Miller  v.  Travers,  on 
appeal.^  The  Vice-Chancellor  had  decided  it  below  about 
six  months  before  the  first  edition  was  printed,  and  this 
decision  was  at  variance  with  Wigram's  conclusions  and 
had  given  him  trouble;  he  had  inade  it  the  subject  of 
searching  criticism  in  the  iirst  edition.  The  circumstance 
that  the  decision  on  appeal,  given  by  a  distinguished  tri- 
bunal (the  Lord  Chancellor  Brougham,  aided  by  Tindal, 
C.  J.,  and  Lyndhurst,  C.  B.)  confirmed  Wigram's  lately 
published  opinion,  naturally  gave  the  case  a  very  con- 
spicuous place  in  the  second  edition  of  the  book,  —  one 
which  it  has  permanently  retained.^  It  is  for  this  reason, 
perhaps,  more  than  any  other,  that  the  case  has  occupied 
so  prominent  a  place  in  the  general  discussions  of  the  sub- 
ject. No  modern  case  has  figured  more  conspicuously  as 
an  illustration  of  the  parol  evidence  rule.  In  reality  it 
decides  no  point  in  the  law  of  evidence.  The  decision  is 
undoubtedly  sound,  but  the  reasoning  is  confused  and  the 
real  point  of  the  matter  is  out  of  focus. 

A  testator  had  devised,  for  the  purpose  of  certain  trusts, 
"all  my  freehold  and  real  estates  whatsoever  situate  in 
the  county  of  Limerick  and  in  the  city  of  Limerick."  He 
had  no  real  estate  in  the  county  of  Limerick,  and  in  the 
city  of  Limerick  only  a  small  amount  —  qiiite  dispropor- 
tioned  to  the  charges  laid  upon  the  devised  estates.     He 

'   8  Hiiif,'.  244. 

^  IIo  devotes  to  tlie  last  decision  some  twenty  papjcs;  more  tliau  an 
r-i;;lit]i  of  tlio  entire  book.  In  its  two  staples,  this  case,  indudinii;  tiie  criti- 
cisms 1)11  tlu!  doctrine  of  tlic  earlier  decision,  takes  up  more  than  a  fifth 
of  the  hook. 


THE   "PAROL   EVIDENCE"   RULE,  475 

had  considerable  estates  in  the  county  of  Clare,  and  it 
was  these  that  he  had  meant  to  devise.  A  draft  of  the 
will  had  been  submitted  to  the  testator,  and  approved  and 
returned  by  him,  in  which  the  devise  ran,  "  all  my  free- 
hold and  real  estates  whatsoever  situate  in  the  counties  of 
Clare,  Limerick,  and  in  the  city  of  Limerick."  While  this 
was  approved  by  the  testator,  some  changes  were  ordered 
in  other  jjarts  of  the  will ;  and  the  draft,  with  a  statement 
of  the  proposed  alterations,  was  sent  by  the  testator's 
attorney  to  his  conveyancer.  The  conveyancer,  in  redraw- 
ing the  paper,  by  mistake  and  without  authority,  struck 
out  the  words  "  counties  of  Clare  "  and  substituted  tlierefor 
the  words  "county  of."  When  the  testator  received  the 
new  draft,  he  did  not  observe  this  change;  and  after  keep- 
ing the  will  by  him  for  some  time,  executed  it  in  this,  its 
final  form. 

The  plaintiff  filed  a  bill  "  for  the  purpose  of  establish- 
ing the  will  .  .  .  and  carrying  into  execution  the  trusts 
thereof."  The  Vice-Chancellor  directed  an  issue  on  the 
question  "whether  the  testator  .  .  ,  did  devise  his  estates 
in  the  county  of  Clare  and  in  the  county  of  Limerick  and 
in  the  city  and  county  of  the  city  of  Limerick,  and  either 
and  which  of  them  to  the.  trustees  mentioned  in  his  will 
and  their  heirs."  On  an  appeal  by  the  heiress-at-law,  the 
Lord  Chancellor  (Brougham)  reversed  this  decree.  In 
arriving  at  this  result,  he  had  called  in  Chief  Justice 
Tindal  and  the  Chief  Baron,  Lord  Lyndhurst.  The  opin- 
ion is  given  by  the  Chief  Justice;  the  Chancellor  contents 
himself  mainly  with  adopting  this  opinion  and  decreeing 
accordingly. 

As  the  case  was  decided,  there  was  no  question  of  con- 
struction in  it;  it  was  expressly  declared  by  the  Lord 
Chancellor  and  the  Chief  Justice  that;  as  the  case  stood, 
no  qiiestion  was  made  as  to  "whether  the  whole  instru- 
ment taken  together,  and  without  going  out  of  it,  was 
sufficient  to  pass  the  estates  in  Clare."  It  was  an  attempt 
to  reform  a  will  by  adding  to  it  words  omitted  by  mistake. 


476  LAW   OF  EVIDENCE. 

"It  is  not,"  said  the  Chief  Justice,  "simply  removing  a 
difficulty  arising  from  a  defective  or  mistaken  description; 
it  is  making  the  will  speak  upon  a  subject  on  which  it  is 
altogether  silent,  and  is  the  same  in  effect  as  the  filling  up 
of  a  blank  which  the  testator  might  have  left  in  his  will. 
It  amounts,  in  short,  ...  to  the  making  of  a  new  devise 
for  the  testator,  which  he  is  supposed  to  have  omitted. 
.  .  .  The  effect  .  .  .  would  be  .  .  .  that  all  the  guards 
intended  to  be  introduced  by  the  Statute  of  Frauds  would 
be  entirely  destroyed,  and  the  statute  itself  virtually 
repealed."  These  difficulties  and  objections  arise  in  point 
of  substantive  law.  They  are  not  objections  which  have 
their  root  in  the  law  of  evidence  or  any  of  its  rules.  The 
point  of  them  lies  in  the  fact  that  the  plaintiff  is  seeking 
to  give  the  quality  and  operation  of  a  devise  to  that  which 
has  not  the  necessary  form  of  a  devise.  The  fatal  objec- 
tion is,  not  that  the  plaintiff's  evidence  is  bad,  but  that 
his  substantive  case  is  bad.  What  he  is  trying  to  do  is 
legally  inadmissible ;  the  trouble  is  not  that  he  is  trying  to 
do  a  permissible  thing  by  means  of  objectionable  evidence. 
Unhappily  for  the  effect  of  this  case  upon  the  law,  it  does 
have  in  it  a  suggestion  of  this  last  difficulty  also:  evi- 
dence inadmissible  under  the  law  of  evidence  was  offered. 
None  the  less,  however,  the  true  proposition  of  the  case  is 
this:  Whether  the  plaintiffs'  evidence  be  good  or  bad  is 
immaterial;  he  cannot  have  an  issue,  because,  however 
admissible  the  evidence  might  be,  and  however  full,  it  can 
do  him  no  good.  He  is  seeking  to  do  a  thing  forbidden  by 
law,  — to  give  the  effect  of  a  devise  to  that  which  has  not 
the  required  form  of  a  devise. 

In  so  far  as  this  case  and  the  issue  in  question  might 
involve  a  question  of  the  factum  of  the  will,  a  matter 
which  at  that  period  was  open  to  inquiry  at  this  stage  of 
such  a  case,  ^  it  is  to  be  observed  that  the  discussion  lacked 
the  discrimination  of  later  cases.  These  recognize  the 
necessity   under   such   circumstances   of    considering   any 

1  Ricketts  v.  Tuniu.iiid,  1  II.  L.  C.  472. 


THE   "PAROL   EVIDENCE"   RULE.  477 

and    all    contemporaneous    expressions   of   the    testator's 
intentions.^ 

In  so  far  as  any  question  of  construction  was  open,  it 
was  not  discussed  and  was  left  undecided.  This  fact, 
which  is  often  overlooked,^  should  be  carefully  observed  in 
estimating  the  scope  and  value  of  this  case.  "Some  argu- 
ments," said  the  Chief  Justice,  "were  offered  by  the  plain- 
tiff's counsel  upon  the  construction  of  the  Avill  from  the 
context  of  the  whole  instrument;  and  it  was  contended 
that,  without  the  introduction  of  any  extrinsic  evidence, 
the  estates  in  Clare  would  pass  under  the  will;  but  as  the 
state  of  the  cause  at  the  time  of  the  hearing  did  not  admit 
of  such  discussion,  and  as  the  counsel  for  the  defendants 
disclaiined  entering  upon  it  at  present,  we  have,  in  fact, 
not  heard  the  parties  on  that  point,  and  we  therefore  think 
it  right  to  forbear  offering  any  opinion  thereon."  And 
the  Chancellor,  in  concurring  with  the  advice  of  the 
judges,  added  the  remark :  "  Whether  the  whole  instru- 
ment taken  together,  and  without  going  out  of  it,  was 
sufficient  to  pass  the  estates  in  Clare,  is  a  point  which  has 
not  been  argued  here,  and  on.  which  we  give  no  opinion." 
The  case  was  treated  as  an  attempt  to  reform  a  mistake 
in  a  will;  in  other  words,  as  raising  the  same  question 
which  was  presented  in  Newburgh  v.  Newburgh,  at  its 
first  stage,  and  which,  in  that  case,  was  rightly  held  in  the 
negative  both  by  the  Vice-Chancellor  below  and  by  the 
Lords,  as  well  as  by  the  judges,  in  a  unanimous  advisory 
opinion.^  That  case  was  cited  as  the  chief  authority 
in  the    Chief    Justice's    opinion    in    Miller    v.    Travers." 

1  Guardhouse  v.  Blackburn,  L.  R.  1  P.  &  D.  109  (1866).  "The  court 
of  probate,  settiuji  about  to  ascertain  the  will  of  the  deceased,  could  not 
stir  a  step  in  the  inquiry,  without  some  proof  beyond  the  mere  writing.  .  .  . 
The  truth  is  that  the  rules  excluding  parol  evidence  have  no  place  in  any 
inquiry  in  which  the  court  has  not  got  before  it  some  ascertained  paper, 
beyond  question  binding  and  of  fall  effect." 

■■2  See,  e.  g.,  Tucker  i'.  Seaman's  Aid  Soc,  7  Met.  188,  pp.  207-208. 

3  5  Madd.  364  (1820)  ;  s.  c.  Do7n.  Proc.  Sugd.  Law  Prop.  206. 

*  "  Upon  the  authority  of  the  cases,  and  more  particularly,  of  that 


478  LAW   OF  EVIDENCE. 

And  yet  the  desired  result  in  Newburgh  v.  jSTewburgh, 
defeated  on  the  lirst  contention,  was  at  last  accomplished 
in  the  House  of  Lords  merely  by  construction.^  It  might, 
therefore,  with  entire  consistency,  have  turned  out,  when 
Miller  v.  Travers  came  to  be  thoroughly  canvassed  on  the 
question  of  construction,  that  a  contrary  result  should  be 
reached;  just  as  it  did  turn  out  that  way  in  Newburgh  v. 
Newburgh.  In  other  words,  the  case  in  reality  is  not  an 
authority  on  the  question  of  construction,  or  the  use  of 
extrinsic  facts  in  aid  of  construction.^ 

14.  The  opinion  in  Miller  v.  Travers  does,  however,  in 
a  confusing  way,  talk  of  construction,  and  one  remark  calls 
for  observation  at  this  point.  The  Chief  Justice,  after 
saying  that  a  difficulty  or  ambiguity  introduced  by  extrinsic 
evidence  may  be  removed  by  further  evidence  upon  the 
same  subject,  adds  that  this  use  of  extrinsic  evidence  is 
limited  to  two  classes  of  cases,  neither  of  which  includes 
the  present:  "But  the  cases  to  which  this  construction 
applies  will  be  found  to  range  themselves  into  two  sepa- 
rate classes,  distinguishable  from  each  other,  and  to 
neither  of  Avhich  can  the  present  case  be  referred.  The 
first  class  is,  where  the  description  of  the  thing  devised, 
or  of  the  devisee,  is  clear  upon  the  face  of  the  will;  but 
upon  the  death  of  the  testator  it  is  found  that  there  are 
more  than  one  estate  or  subject-matter  of  devise,  or  more 
than  one  person  whose  description  follows  out  'and  fills 
the  words  used  in  the  will.  As  where  the  testator  devises 
his  manor  of  Dale,  and  at  his  death  it  is  found  that  he  has 
two  manors  of  that  name,  South  Dale  and  North  Dale;  or 
where  a  man  d(!vises  to  his  son  John,  and  he  has  two  sons 
of  that  name.     In  each  of  these  cases  respectively  parol 

which  is  last  referred  to,"  says  Tiiidal,  C.  J.,  in  8  Bing  244,  referring  to 
iS'owliurgh  V.  Newhurgh. 

1  "The  omission,"  says  Siigilon,  "  \v;i8  supplied  by  construction,  and 
the  will  was  sup])orled  just  as  if  there  had  been  no  mistake."  Law  of 
Prop.  207  ;  s.  c.  Tiiayer's  Ca.scs  on  Evidence,  847  ;  and  on  a|)i)eal,  9.31. 

-  And  vet  see  Loni  Hrougiiam's  bigli  coninionchiLiun  of  tiie  case  in 
Mostyu  V.  Mostyu,  5  II.  L.  C.  1C8  (1854). 


THE   "PAROL   EVIDENCE"   RULE.  479 

evidence  is  admissible  to  show  which  manor  was  intended 
to  pass,  and  which  son  was  intended  to  take.  Bac.  Max. 
23;  Hob.  Rep.  32;  Edward  Altham's  Case,  8  Eep.  155. 
The  otlier  class  of  cases  is  that  in  which  the  description 
contained  in  the  will  of  the  thing  intended  to  be  devised, 
or  of  the  person  who  is  intended  to  take,  is  true  in  part, 
but  not  true  in  every  particular.  As  where  an  estate  is 
devised  called  A,  and  is  described  as  in  the  occupation  of 
B,  and  it  is  found,  that  though  there  is  an  estate  called 
A,  yet  the  whole  is  not  in  B's  occupation;  or  where  an 
estate  is  devised  to  a  person  whose  surname  or  Christian 
name  is  mistaken;  or  whose  description  is  imperfect  or 
inaccurate ;  in  which  latter  class  of  cases  parol  evidence  is 
admissible  to  show  what  estate  was  intended  to  pass,  and 
who  was  the  devisee  intended  to  take,  provided  there  is 
sufficient  indication  of  intention  appearing  on  the  face  of 
the  will  to  justify  the  application  of  the  evidence."  ^ 

Here  we  see  again  the  recognition  of  that  ancient  case 
of  the  two  or  more  persons  or  things  of  the  same  name, 
which  could  not  be  overlooked,  because  it  had  been  recog- 
nized in  our  books  for  centuries ;  and  also,  the  old  familiar 
recognition  of  another  case  assimilated  with  that,  as  if 
governed  by  a  common  principle,  — namely,  that  of  two  or 
more  objects,  persons,  or  things,  to  neither  of  which  does 
the  description  accurately  apply,  but  where  either  might 
answer  the  call  if  it  stood  alone.  The  common  quality 
here  is  described  by  saying  that  there  is  a  latent  ambigu- 
ity, disclosed  by  extrinsic  circumstances :  Being  thus  dis- 
closed, they  say,  it  may  be  in  like  manner  removed;  and 
it  is  allowed  thus  to  be  removed  "  from  the  necessity  of 
the  case."^  While  to  this  extent  extrinsic  facts  were 
allowed  to  "  supplement  the  evidence  of  the  will  itself  and 
the  terms  of  the  will  itself  as  to  the  testator's  intention,"  ^ 
beyond  these  limits  it  was  said  here,  as  in  earlier  cases, 

1  8  Bing.  244,  248. 

2  Doe  d.  Cliichester  v.  Oxenden,  4  Dow,  65. 

8  Lord  Russell,  C.  J.,  in  In  re  Stephenson,  75  L.  T.  R.  495,  496  (1897). 


480  LAW   OF   EVIDENCE.. 

you  could  not  go.  In  saying  this,  it  will  be  observed,  no 
discrimination  was  made  between  direct  statements  of  in- 
tention and  any  other  evidence.  Of  course  in  that  outer 
region  where  all  extrinsic  matter  was  condemned  there  was 
no  good  and  bad;  but  within  the  region  where  extrinsic 
matter  was  available  in  aid  of  construction,  this  same  lack 
of  discrimination  was  found,  and  it  had  tended  to  create  a 
confused  impression  that  where  any  extrinsic  evidence  was 
admissible  all  was  equally  admissible.  Wigram's  book  cor- 
rected that;  a:id  although  the  judges  in  Miller  v.  Travers 
had  profited  little  by  this  book,  if  they  ever  heard  of  it, 
the  doctrine  was  soon  clearly  and  permanently  recognized 
in  the  cases.  ^ 

15.  With  this  discrimination  clearly  made,  and  the 
recognition  of  the  narrow  restriction  thus  put  upon  the 
use  of  direct  extrinsic  statements  of  intention,  room  was 
left  for  a  juster  and  more  liberal  view  of  the  use  of  ex- 
trinsic facts,  generally,  in  aid  of  construction.  The  main 
features  of  this  new  gospel  were  truly  set  out  by  Wigram; 
but  he  was  a  pioneer;  he  was  hampered  by  the  supposed 
necessity  of  so  distinguishing  the  older  cases  as  not  to 
seem  to  set  them  wholly  aside ;  and  it  may  be  that  he  saw 
some  points  less  clearly  than  his  successors,  who,  in  their 
studies  of  the  subject,  had  been  emancipated  by  him,  and 
had  begun  where  he  left  off.  While  his  phraseology  con- 
demned all  "evidence  of  intention,"  unless  where  direct 
statements  of  intention  were  allowed,  those  who  came 
after  him  could  plainly  and  openly  recognize  that  much  of 
the  allowable  use  of  ordinary  extrinsic  facts  did,  in  fact, 
go  directly  to  that  point.  While  he  found  the  use  of  direct 
statements  of  intention  in  any  case  difficult  to  support, 
they  were  able  to  fmd  it  always  logically  good;  and  only 
excluded,   in  general,  on  grouiuls  of  policy;  and  while  he 

1  E.  g.  Doe  d.  Oord  v.  Needs,  2  M.  &  W.  129  (1836),  and  Doe  d.  His- 
cocks  V.  Iliscocks,  5  M.  &  W.  363  (1839),  Charter  v.  Charter,  L.  R.  7 
II.  L.  364  (1874),  that  it  was  only  in  the  one  case  of  equivocation  that 

ilircct  HtatomcntH  oi  intcnliuu  cuuld  be  used. 


THE   "PAROL  EVroENCE"  RULE.  481 

laid  down  with  excessive  strictness  the  just  principle  that, 
in  general,  the  natural  and  ordinary  meaning  of  words 
should  be  given  to  them,  and  so  their  technical  meaning, 
when  they  have  any,  they  were  able,  and  the  courts  in  a 
fair  degree  have  gradually  become  able,  to  apply  the  prin- 
ciple in  a  more  liberal  manner.  Wigram  had  put  it,  in 
his  second  proposition,  that  if  the  context  of  a  will  allows 
it,  and  if  the  strict  and  primary  sense  of  the  words  is 
sensible  with  reference  to  extrinsic  circumstances,  it  is  an 
inflexible  rule  of  construction  that  they  shall  be  inter- 
preted in  that  sense  and  no  other.  And  again, ^  that 
"in  cases  in  which  the  meaning  of  the  words  is  either 
settled  by  decision,  or  clear  upon  the  will  itself,  and  in 
which  the  facts  of  the  case  do  not  necessarily  exclude  the 
supposition  that  the  words  were  used  in  their  decided  or 
apparent  sense,  the  second  proposition,  above  stated, 
leaves  nothing  to  the  discretion  of  a  court;  and  exposition, 
in  the  strict  observance  of  that  proposition,  is  safe  against 
the  inroads  of  conjecture."^  Thirty  years  later  Hawkins* 
laid  down  the  main  proposition,  in  this  more  liberal  form, 
namely,  that  "the  words  and  expressions  used  are  to  be 
taken  in  their  ordinary,  proper,  and  grammatical  sense;  — 
unless  upon  so  reading  them  in  connection  with  the  entire 
will,  or  upon  applying  them  to  the  facts  of  the  case,  an 
ambiguity  or  difficulty  of  construction,  in  the  opinion  of 
the  court,  arises,  in  which  case  the  primary  meaning  of  the 
words  may  be  modified  ...  so  far  as  to  remove  or  avoid 
the  difficulty  or  ambiguity,  but  no  further." 

Certainly,  however,  Wigram's  little  book,  in  38.31,  went 

1  n.  128. 

2  "  The  court  is  bound  to  construe  the  words  of  the  will  in  their  strict 
and  primary  sense  unless  the  circumstances  of  the  case  exclude  that  sense  ; 
and  the  court  is  not  at  liberty  to  construe  tlie  words  in  any  secondary 
sense,  only  because  the  state  of  the  property  or  other  extrinsic  circum- 
stances may  make  it  in  the  highest  degree  probable  that  the  words  were 
used  in  such  secondary  sense."  Per  Wigram,  V.  C,  in  Saver  v.  Saver, 
7  Hare,  377,  381   (1848). 

3  WiUs,  2. 

31 


482  LAW   OF   EVIDENCE. 

far  to  clear  up  the  confusion  that  had  gathered  over  the 
whole  subject.  He  was  led  to  write  it,  as  he  says  in  the 
"Advertisement"  to  the  first  edition,  by  being  accident- 
ally present  at  the  hearing  of  the  case  of  Goblet  v. 
Beechey,  before  Vice-Chancellor  Leach,  in  July,  1826,  — 
a  case  of  which  he  gives  some  account  in  an  appendix. 
The  book  lacks  an  historical  exposition,  and,  as  already 
said,  it  does  not  clearly  discriminate  those  parts  of  it  which 
belong  to  the  law  of  evidence  from  the  rest.  This  is  its 
great  defect.  The  cases,  also,  are  not  so  thoroughly  ana- 
lyzed, or  treated  with  so  free  a  hand,  as  might  be  wished. 
Owing,  furthermore,  to  the  use  of  an  "interpretation 
clause"  near  the  beginning,  and  to  the  use  of  the  phrase 
"evidence  to  prove  intention,"  in  a  special  sense,  his 
meaning  is  often  misconceived.  It  should  be  added  that 
his  conception  of  the  nature  of  the  whole  process  of  inter- 
pretation lacks  thoroughness.^ 

But  whether  explicitly  stated  by  Wigram  or  not,  this 
book  brings  out  and  stamps  upon  the  mind  of  careful  read- 
ers two  or  three  things  of  capital  importance:  1.  That 
Bacon's  maxim  is  inadequate  and  uninstructive ;  2.  That 
extrinsic  expressions  of  the  writer's  intention  cannot  be 
resorted  to  in  aid  of  the  exposition  of  a  will,  except  where 
a  person  or  thing  is  described  in  terms  equally  applicable 
to  two  or  more ;  and  3.  That  there  is  no  excluding  rule  of 
evidence,  other  than  this,  peculiar  to  this  subject.  The 
seven  propositions  which  are  the  substance  of  the  book 
amount  to  this:  A  testator,  unless  the  text,  read  as  a 
whole,  shows  the  contrary,  presumably  uses  words  in  their 
primary  sense.  If  the  extrinsic  facts  of  the  case  allow  of 
the  words  having  this  sense,  they  must  have  it;  if  they  do 
not,  the  words  must  have  such  other  secondary  sense  as 
they  are  capable  of,  in  view  of  these  facts.  If  the  words 
are  obscure,  or  unintelligible  to  the  court,  resort  may  be 
liad,    in   deciphering   or   translating  them,  to  the   aid  of 

'  Wigram's  hook  sliould  l)n  sn|)i)lcmciitc(l  by  the  excellent  paper  of 
HawkiiiH,  inserted  infra,  Ajipoiidix   li. 


THE   "PAROL  EVIDENCE"  RULE.  483 

competent  witnesses.  While,  as  regards  persons  and 
things  indicated  by  the  testator,  and  "every  other  disputed 
point  respecting  which  it  can  be  shown  that  a  knowledge 
of  extrinsic  facts  can,  in  any  way,  be  made  ancillary  to 
the  right  interpretation  of  a  testator's  words,"  a  court 
may  look  at  every  extrinsic  fact  which  is  not  excluded  by 
the  general  rules  of  evidence,  yet  there  is  one  excluding 
rule  of  evidence,  namely,  that  not  even  to  save  a  will  from 
being  void  for  uncertainty  can  "  evidence  to  prove  inten- 
tion itself  "  be  received,  unless  in  the  case  of  equivocation ; 
namely,  where  a  person  or  thing  is  described  in  terms 
applicable,  equally,  to  more  than  one. 

And  this,  it  is  believed,  is  the  only  rule  of  evidence 
included  in  the  entire  compass  of  the  so-called  parol 
evidence  rule. 


484  LAW    OF   EVIDENCE. 


CHAPTER  XL 

THE  *'BEST  EVIDENCE"  RULE.l 

We  find,  to-day,  iu  our  treatises  on  evidence,  a  rule  or 
principle  to  which  is  assigned  a  great,  comprehensive  place 
and  scope,  quite  unparalleled  in  this  part  of  the  law.  It 
is  called  the  rale  of  the  Best  Evidence.  In  Greenleaf's 
treatise  on  Evidence,  where  he  follows,  with  a  variation,  an 
earlier  writer,  it  is  the  last  of  four  great,  fundamental 
rules  which  are  said  to  govern  the  production  of  testimony.- 

1  The  substance  of  this  chapter  and  the  next  was  read,  as  a  part  of  the 
Storrs  Lectures,  at  the  Law  School  of  Yale  University,  iu  October,  1896. 
Although,  as  originally  written,  these  papers  were  intended  ultimately  to 
take  their  place  here,  the  immediate  occasion  for  which  they  were  pre- 
pared must  account  for  tlie  mode  of  treatment.  For  reasons  indicated 
before  (supra,  5)  I  liave  preferred  not  to  recast  them. 

2  The  Law  of  Evidence  is  considered  by  Greenleaf  under  three  heads. 
Part  L  deals  with  the  "  Nature  and  Principles  of  Evidence ;  "  Part  II. 
witli  "  The  Rules  whicli  govern  tlie  Production  of  Testimony  ; "  and  ^art 
III.,  with  "Tiie  Instruments  of  Evidence."  It  is  Part  II.  wliich  covers  the 
e.xcluding  rules  and  all  the  main  body  of  the  subject ;  and  iu  opening  this, 
after  a  few  general  remarks,  tiie  writer  says  :  "  The  production  of  evidence 
to  tlie  jury  is  governed  by  certain  principkis  which  may  be  treated  under 
four  general  lieads,  or  rules.  The  first  of  tiiese  is,  that  the  evidence  must 
correspond  with  tlu;  allegations  and  be  confined  to  the  point  in  issue.  Tlie 
second  is,  that  it.  is  siiflicient  if  the  substance  only  of  the  issue  be  proved. 
The  tliii'd  is,  that  tlic  burden  of  proving  a  proposition,  or  issue,  lies  ou 
the  parly  iiolding  the  alHrmativo.  And  the  fourth  is,  that  the  best  evi- 
dence of  wiii(-li  the  case  iu  its  nature  is  susceptible  must  always  be  pro- 
duced." Tli(!sc  four  to]iics  give  name  to  the  first  four  chapters  of  Part 
II.;  and  thou  the  rfiinaining  chaptors,  five  to  fifteen  inclusive,  entitled 
Hearsay,  etc.,  (!tc.,  follow,  as  if  they  were  merely  co-ordinate  with  what 
jirecedcs.     The  treatment  is  oijscurc  ;  but  evidently  Greenleaf's  conception 


THE   BEST   EVIDENCE.  485 

The  first  three  lay  it  down  (1)  that  evidence  must  be  rele- 
vant to  what  is  alleged  in  pleading ;  (2)  that  it  need  only 
prove  the  substance  of  the  issue  ;  and  (3)  that  the  burden 
of  proving  a  proposition  lies  on  him  who  affirms  it.  These 
three  rules,  however,  are  not  rules  of  evidence,  but  of 
practice,  pleading,  or  legal  reasoning.  For,  as  regards 
the  first  two,  namely,  that  the  evidence  must  be  relevant  to 
the  allegations,  and  that  it  is  enough  to  prove  the  substance 
of  the  issue,  they  simply  set  up  the  lists  for  the  contest, 
define  the  aims  and  limits  of  the  dispute,  and  assert  the 
necessity  of  logical  relevancy  —  which  is  a  matter  of  course 
in  a  rational  system.  The  rules  of  evidence  are  not  called 
into  play  until  all  this  has  been  first  ascertained.  The 
point  to  which  a  party  must  address  himself,  the  thing  that 
he  must  prove,  being  determined,  the  rules  of  evidence 
help  to  govern  the  mode  in  which  he  proceeds  to  prove  it. 
As  to  the  third  rule,  fixing  the  burden  of  proof,  if  this 
means  the  duty  of  establishing  the  issue  by  the  necessary 
preponderance  of  proof,  as  contrasted  with  the  purely  de- 
fensive office  of  keeping  an  adversary  in  check,  that,  as  we 
have  already  seen,^  is  a  rule  fixing  responsibility,  in  all 
departments  of  legal  reasoning ;  not  merely  in  trying  cases, 
where  alone  the  rules  of  evidence  have  place,  but  in  arguing 
them  when  the  trial  is  over,  or  when,  as  on  agreed  facts, 
there  never  was  any  trial.  And  if  the  burden  of  proof 
means  the  duty  of  going  forward,  and  not  necessarily  the 
duty  of  establishing,  this  is  still  a  rule  of  practice  gov- 
erning the  whole  topic  of  legal  reasoning,  and  in  no  way 
peculiar  to  the  law  of  evidence.  He  who  would  apply  the 
rules  of  evidence  wuth  success  must,  of  course,  have  these 
three  rules  carefully  in  mind.  But  that  is  only  saying  that 
he  must  take  account  of  the  substantive  rights  and  duties, 
and  of  the  rules  of  pleading  and  procedure  pertinent  to  his 
contention,  and  that  these  must  govern  and  point  all  his 

of  these  first  four  rules  is  not  thnt  they  are  co-ordiuate  with  the  others, 
but  that  they  govern  the  application  of  them  all. 
1  Supra,  c.  ix. 


486  LAW   OF   EVIDENCE. 

evidence.  Of  course  tliey  must.  It  is  only  as  he  observes 
them,  that  he  is  saved  from  striking  wild. 

If,  tlien,  among  these  four  all-controlling  principles  there 
be  any  rule  of  evidence  at  all,  it  must  be  the  fourth.  What 
is  this  rule  ?  Is  there  to-day,  in  point  of  fact,  any  rule 
of  the  Best  Evidence  which  either  comprehends,  or  subor- 
dinates and  shapes  the  application  of  all  the  I'ules  of  evi- 
dence ?  If  so,  what  is  it,  and  how  shall  we  state  it  ?  As  we 
find  it  laid  down,  it  runs  that  "  the  best  evidence  of  which 
the  case,  in  its  nature,  is  susceptible,  must  always  be 
produced." 

Greenleaf  devotes  a  chapter  to  it,^  consisting  of  sixteen 
sections.  The  last  thirteen  of  these  are  devoted  to  what 
are  called  "  the  cases  which  most  frequently  call  for 
the  application  of  the  rule  .  .  .  those  which  relate  to  the 
substitution  of  oral  for  written  evidence  ;  "  that  is  to  say, 
almost  all  the  chapter  is  merely  a  statement  of  the  doctrine 
that  if  one  would  prove  the  contents  of  a  writing  he  must 
produce  the  writing  or  legally  excuse  its  absence.  That 
rule,  it  will  be  observed,  is  not  regarded  as  being  itself  the 
rule  of  the  Best  Evidence,  but  only  an  instance  of  the 
application  of  it. 

What,  then,  do  we  learn  of  the  rule  itself,  this  great, 
shaping  rule,  affecting  the  production  of  all  testimony  ? 
We  learn  this,  that  it  is  a  rule  which  "  excludes  only 
that  evidence  which  itself  indicates  the  existence  of  more 
original  sources  of  information.  But  where  there  is  no 
substitution  of  evidence,  but  only  a  selection  of  weaker, 
instead  of  stronger  proofs,  or  an  omission  to  supply  all 
the  proofs  capable  of  being  produced,  the  rule  is  not 
infringed.'"^ 

1  Vol.  i.  c.  4,  ss.  82  to  97  iiicl. 

2  iScct.  82.  1  f(ivc  tliG  rest  of  this  .section  in  full :  "  A  fourth  rule,  which 
govornH  in  the  production  of  evidence,  is  that  which  rcnuires  the  best  evi- 
dence of  which  the  case,  in  its  nature,  is  susceptible.  Tliis  rule  does  not 
demand  the  greatest  amount  of  evidence,  which  can  possihly  be  given  of 
anv  fact ;  hut  its  (lesign  is  to  prevent  tlio  intnxhiction  of  any,  which,  from 
tlie  nature  of  tlie  case,  supposes  tliat  better  evidence  is  in  tiic  pos.sessiou 


THE   BEST   EVIDENCE.  487 

We  are  then  told,  in  a  few  lines  (s.  83),  that  there  are 
exceptions,  such  as  the  case  of  proving  that  othcial  charac- 
ter may  be  shown  by  proof  of  acting  in  the  office  without 
producing  a  man's  commission.  And  lastly  (s.  84)  it  is 
said  that  this  rule  divides  evidence  into  primary  and  sec- 
ondary. "Primary  evidence  is  .  .  .  the  best  evidence,  or 
that  kind  of  proof  wliich,  under  any  possible  circumstances, 
affords  the  greatest  certainty  of  the  fact  in  question.  .  .  . 
All  evidence  falling  short  of  this,  in  its  degree,  is  termed 
secondary.  .  .  .  Evidence  which  carries  on  its  face  no  in- 
dication that  better  remains  behind,  is  not  secondary  but 
primary." 

This  is  the  substance  of  what  this  leading  author  says. 
Taylor,  in  his  book  on  Evidence,  largely  repeats  Greenleaf. 
And  Best,  in  his  treatise,  sets  forth,  even  more  emphatically, 

of  the  party.  It  is  adopted  for  the  prevention  of  fraud ;  for  when  it  is 
apparent,  that  the  better  evidence  is  withheld,  it  is  fair  to  presume,  that 
the  party  had  some  sinister  motive  for  not  producing  it,  and  that,  if 
offered,  his  design  would  be  frustrated.  The  rule  thus  becomes  essential 
to  the  pure  administration  of  justice.  In  reqiiiring  tlie  production  of  the 
best  evidence  applicable  to  each  particular  fact,  it  is  meant,  that  no  evi- 
dence shall  be  received,  which  is  merely  substitutionary  in  its  nature,  so 
long  as  the  original  evidence  can  be  had.  The  rule  excludes  only  that 
evidence,  which  itself  indicates  the  existence  of  more  original  sources  of 
information.  But  where  there  is  no  substitution  of  evidence,  but  only  a 
selection  of  Aveaker,  instead  of  stronger  proofs,  or  an  omission  to  supply 
all  the  proofs  capal)]e  of  being  produced,  the  rule  is  not  infringed.  Thus 
a  title  by  deed  must  be  proved  by  the  production  of  the  deed  itself,  if  it  is 
within  the  power  of  the  party ;  for  tliis  is  the  best  evidence,  of  which  the 
case  is  susceptible ;  and  its  non-production  would  raise  a  presumption, 
that  it  contained  some  matter  of  apparent  defeasance.  But  being  pro- 
duced, the  execution  of  the  deed  itself  may  be  proved  by  only  one  of  the 
subscribing  witnesses,  though  the  other  also  is  at  hand.  And  even  the 
previous  examination  of  a  deceased  subscribing  witness,  if  admissible  on 
other  grounds,  may  supersede  the  necessity  of  calling  the  .survivor.  So, 
in  proof  or  disproof  of  handwriting,  it  is  not  necessary  to  call  the  supposed 
writer  himself.  And,  even  where  it  is  necessary  to  prove  negatively,  that 
an  act  was  done  without  the  consent,  or  against  the  will  of  anotlier,  it  is 
not,  in  general,  necessary  to  call  the  person,  whose  will  or  consent  is 
denied." 


488  LAW   OF  EVIDENCE. 

the  great,  overtopping  pre-eminence  of  this  supposed  rule 
of  evidence.  Repeating  the  expressions  of  earlier  writers 
and  judges,  to  the  effect  that  "  there  is  but  one  general  rule 
of  evidence,  the  best  that  the  nature  of  the  case  will 
admit,"  he  adds  an  exposition  of  his  own,  not  found  else- 
where. The  true  meaning,  he  tells  us,  of  "  this  funda- 
mental principle  will  be  best  understood  by  considering  the 
three  chief  applications  of  it."  1.  Evidence  must  come 
through  proper  channels  ;  i.  e.,  the  tribunal  must  not  go  on 
private  information,  but  on  legal  evidence.  2.  The  evi- 
dence must  be  original  and  not  derivative;  a  principle 
which  covers  hearsaj^,  and  the  rule  about  proving  the  con- 
tents of  a  writing.  3.  The  evidence  must  have  an  open, 
visible,  clear  connection  with  the  fact  to  be  proved.  And 
then  Best  adds  that  "  the  true  character  and  value  of  the 
important  principle  now  under  consideration  is,  however, 
more  easily  conceived  than  described.  In  dealing  with 
natural  evidence,  he  says,  the  connection  between  the  prin- 
cipal and  evidentiary  facts  must  be  left  to  instinct ;  in 
legal  evidence  this  is  replaced  by  a  sort  of  instinct  or  legal 
sense  acquired  by  practice." 

This  is  pretty  vague.  Best  limits  the  distinction  of  pri- 
mary and  secondary  evidence  to  writings,  l.  e.,  to  what 
Greenleaf  deals  with  as  the  "  chief  application  "  of  the  great 
rule.  And  in  truth,  when  we  talk  of  specific  rules  of 
evidence,  this  one,  which  requires  the  production  of  the 
original  document,  seems  to  be  about  all  there  is  left  of  the 
Best  Evidence  principle. 

If  that  is  so,  it  would  be  wise  to  drop  the  expression,  as 
a  name  for  any  definite  rule  of  exclusion,  since  the  rule 
just  referred  to  has  its  own  sufficient  name  and  place.  The 
vagueness  and  generality  of  the  accounts  given  by  Greenleaf 
and  ]?est  will  be  noticed.  It  seems  plain  that  these  writers 
are  trying,  what  Gilbert  vainly  tried  before  them,  namely,  to 
reduce  to  the  tangible  form  of  an  excluding  rule  what  the 
older  judges  Imd  put  forward  as  a  shaping  principle.  Any 
excluding  rule  (jf  evidence  tends  necessarily  to  sharpness  of 


THE   BEST   EVIDENCE.  489 

definition  :  it  is  by  its  nature  unfitted  for  that  large  function 
which  is  assigned,  ou  paper,  to  the  Best  Evidence  principle. 
In  point  of  fact,  the  rule  against  substitutionary  evidence 
is  one  of  narrow  operation.  The  language  of  our  law  writ- 
ers comes  from  an  attempt  to  keep  alive  a  phrase  that  has 
lost  its  original  meaning  and  survived  its  old  function. 

Let  us  look  at  the  history  of  the  matter.  How  did  this 
rule  of  the  Best  Evidence  originate  ?  what  was  its  mean- 
ing ?  and  what  has  been  its  development  ? 

The  phrase  first  appears  in  our  cases,  I  believe,  after  the 
English  revolution,  in  C.  J.  Holt's  time.  That  is  an  early 
period  for  anything  like  a  rule  of  evidence,  properly  so 
called.  Such  rules  could  not  well  come  into  prominence, 
or  be  much  insisted  on,  while  the  jury  were  allowed  to  find 
verdicts  on  their  own  knowledge  ;  and  that  power  of  the 
jury  had  been  elaborately  asserted  as  a  leading  ground  of 
the  judgment  in  Bushell's  case  in  1670,  by  Vaughan,  C.  J., 
speaking  for  the  court.  Finding  the  rule,  then,  at  the  end 
of  the  seventeenth  century,  let  us  trace  it  down,  not  too 
minutely.  In  the  year  1699-1700,  in  Ford  v.  Hopkins,^ 
in  allowing  a  goldsmith's  note  as  evidence  against  a  stranger 
of  the  fact  that  the  goldsmith  had  received  money,  Holt, 
C.  J.,  said  that  they  must  take  notice  of  the  usages  of 
trade  ;  "the  best  proof  that  the  nature  of  the  thing  will 
afford  is  only  required."  This  is  the  earliest  instance  of 
the  use  of  the  phrase  that  I  remember.  This  or  its  syn- 
onyms is  repeatedly  used  by  Holt  and  others.  In  1701 
counsel  argue  that  certain  evidence  is  ''not  good,  because 
not  the  best  the  nature  of  the  thing  will  bear,  but  only  cir- 
cumstantial." Holt,  C.  J.,  overruled  this  contention.  Again, 
in  1709,^  on  a  question  of  proving  the  contents  of  papers 
sent  over  from  Ireland,  by  a  deposition,  or  by  a  witness 
who  had  gone  to  Ireland  and  verified  the  copy,  it  was 
argued  that  '"'the  best  evidence  that  can  be  had  must  be 

'  1  Salk.  283.     It  will  be  remembered  that  money  used  to  be  deposited 
with  goldsmiths,  and  their  notes  taken  as  evidence  of  the  deposit. 
2  Altham  v.  Anglesea,  11  Mod.  210. 


490  LAW   OF   EVIDENCE. 

given."  The  deposition  was  held  good.  Holt,  C.  J :  "  The 
law  requires  the  best  evidence  that  can  be  had.  .  .  .  But 
this  rule  must  be  interpreted  with  reference  to  the  witness 
deposing ;  "  his  affidavit  is  not  good  if  he  is  here ;  but  if 
absent  his  deposition  may  be  good. 

The  phrase  now  became  familiar,  and  it  continued  to  hold 
a  great  place  throughout  the  eighteenth  century.  Chief 
Baron  Gilbert  introduced  the  expression  into  his  book  on 
Evidence,  and  recognized  the  rule  which  requires  of  a  party 
the  best  evidence  that  he  can  produce,  as  the  chief  rule  of 
the  whole  subject.  This  book  was  written  at  some  time 
before  1726,  for  that  was  the  date  of  Gilbert's  death  ;  and 
it  was  not  only  the  first  text-book  on  the  subject,  of  any 
importance,  but  it  held  its  place  to  the  end  of  the  century 
as  the  great  authority.  It  is  said  in  Gilbert's  book  ^  that 
"  the  first,  therefore,  and  most  signal  rule  in  relation  to  evi- 
dence is  this,  that  a  man  must  have  the  utmost  evidence 
the  nature  of  the  fact  is  capable  of.  .  .  .  The  true  meaning 
of  the  rule  of  law  that  requires  the  greatest  evidence  that 
the  nature  of  the  thing  is  capable  of  is  this,  that  no  such 
evidence  shall  be  brought  which  ex  natura  rei  supposes  still 
a  greater  evidence  behind  in  the  parties'  own  possession 
and  power."  Why  did  he  not  produce  tlie  better  evidence  ? 
he  asks ;  and  he  illustrates  by  what  was  always  the  stock 
example,  the  case  of  offering  "a  copy  of  a  deed  or  will 
wliere  he  ought  to  produce  the  original." 

This  principle  is  the  test  throughout  the  book.  Some- 
times we  are  told  that  it  is  enough  if  a  party  offer  the  best 
evidence  that  he  can.  If  a  witness  fall  sick  by  the  way, 
his  d('])Osition  may  be  used,  "for,  in  tliis  case,  the  deposi- 
tion is  tlie  best  evidence  that  possibly  can  be  had,  and  that 
answers  what  the  law  requires."  That  remark  carries  an 
important  suggestion  ;  it  is  a  generalization  of  Holt's  doc- 
trine in  1709,  and  adds  to  the  rule  of  the  best  evidence 
an  aspect  of  indulgence,  by  limiting  the  operation  of  its 
excluding  quality.    The  rule  becomes  now  tliis  :  a  party  must 

1  2(1  Oil.  4,  15-17. 


THE   BEST   EVIDENCE.  491 

bring  the  best  evidence  that  he  can ;  and  if  he  does  this  it 
is  enough.  Such  a  rule  as  that  would  have  admitted  hear- 
say, if  a  witness  had  died.  In  Bacon's  Abridgment,  first 
published  in  1736,  we  are  told  that  "  It  seems  in  regard  to 
evidence  to  be  an  uncontestable  rule  that  the  party  who 
is  to  prove  any  fact,  must  do  it  by  the  highest  evidence 
the  nature  of  the  thing  is  capable  of."  And  in  a  book  of 
very  extensive  vogue,  Buller's  Nisi  Prius,^  this  rule  figured 
as  ''  the  first  general  rule  of  evidence,"  and  Gilbert's  language 
was  repeated. 

Blackstone,  also,  in  1768,  and  in  all  the  editions  of  his 
Commentaries,  followed  Gilbert.  "  The  one  general  rule," 
he  said,  "that  runs  through  all  the  doctrine  of  trials  is  this, 
that  the  best  evidence  the  natvire  of  the  case  will  admit  of 
shall  always  be  required,  if  possible  to  be  had  ;  but  if  not 
possible,  then  the  best  evidence  that  can  be  had  shall  be  al- 
lowed." For,  he  added,  if  there  be  better  evidence,  not  pro- 
ducing it  raises  a  presumption  of  falsehood  and  concealment.^ 

The  courts  also  were  using  the  same  and  even  more 
emphatic  language.  In  1740,^  Lord  Hardwicke  declared 
that  "  the  rule  of  evidence  is  that  the  best  evidence  that 
the  circumstances  of  the  case  will  allow  must  be  given. 
There  is  no  rule  of  evidence  to  be  laid  down  in  this  court 
but  a  reasonable  one,  such  as  the  nature  of  the  thing  to  be 
proved  will  admit  of."  And  in  1792  *  Lord  Loughborough 
said  "  that  all  common-law  courts  ought  to  proceed  upon 
the  general  rule,  namely,  the  best  evidences  that  the  nature 
of  the  case  will  admit,  I  perfectly  agree."  But  the  great, 
conspicuous  instance  in  which  this  doctrine  was  asserted 
and  applied  was  in  the  famous  and  historical  case  of 
Omychund  v.  Barker,  in  1744,  growing  out  of  the  extension 

1  Originally  published  as  Bathurst  on  Trials  in  1760.  Bathurst  was 
Buller's  uncle. 

2  Com.  iii.  368. 

•^  Llewellin  v.  Mackworth,  2  Atk.  40;  Villiers  r.  Villiers,  ib,  71.  And 
he  affirmed  that  the  rules  of  evidence  at  law  and  in  equity  were  the 
same.     2  Ves.  38. 

*  Grant  v.  Gould,  2  H.  Bl.  p.  104. 


492  LAW   OF   EVIDENCE. 

of  British  commerce  iu  India,  where  the  question  was  on 
receiving  in  an  English  court  the  testimony  of  a  native 
heathen  Hindoo,  taken  in  India,  on  an  oatli  conformed  to 
the  usages  of  his  religion.  In  this  case,  Willes,  J./  resorted 
to  this  rule,  and  Lord  Hardwicke,  sitting  as  Chancellor,  with 
great  emphasis  -  said  :  "  The  judges  and  sages  of  the  law 
have  laid  it  down  that  there  is  but  one  general  rule  of 
evidence,  the  best  that  the  nature  of  the  case  will  allow. 
...  It  is  a  common  natural  presumption  that  persons  of 
the  Gentoo  religion  should  be  principally  apprised  of  facts 
and  transactions  in  their  own  country."  And  so  he  found 
a  "  presumed  necessity." 

Fifty  years  later  these  remarks  of  Lord  Hardwicke  were 
resorted  to  by  Burke,  in  attacking  what  he  regarded  as  the 
too  great  strictness  of  the  Lords  in  limiting  the  testimony 
at  the  trial  of  the  impeachment  of  Warren  Hastings.  In 
1794,  in  his  Report  on  the  Lords'  Journal,  Burke  dealt  with 
the  matter  in  this  resounding  declaration :  ^  ''At  length 
Lord  Hardwicke,  in  one  of  the  cases  the  most  solemnly 
argued  that  has  been  in  man's  memory,  with  the  aid  of  the 
greatest  learning  at  the  bar,  and  with  the  aid  of  all  the 
learning  on  the  bench,  both  bench  and  bar  being  then  sup- 
plied with  men  of  the  iirst  form,  declared  from  the  bench, 
and  in  concurrence  with  the  rest  of  the  judges  and  with  the 
most  learned  of  the  long  robe,  the  able  counsel  on  the  side 
of  the  old  restrictive  principles  making  no  reclamation, 
'that  the  judges  and  sages  of  the  law  have  laid  it  down 
that  there  is  but  ONE  general  rule  of  evidence,  —  the 
best  that  the  nature  of  the  case  will  adm.itJ  This,  then," 
added  Burke,  "the  master  rule  that  governs  all  the  sub- 
ordinate rules,  does,  in  reality,  subject  itself  and  its  own 
virtue  and  authority  to  the  nature  of  the  case,  and  leaves 
no  rule  at  all  of  an  independent  abstract  and  substantive 
quality." 

1   Willr's  Ufj).  p.  550.  2   1  \^\^    p  49 

'^  Wiirk.s  of  IJiiikc  (Lilllc  &  Brown's  ed.),  xi.  77  ;  'I'liaver's  Cases  on 
r.vidoncc,  7.'J2. 


THE  BEST  EVIDENCE.  493 

This  perfectly  natural  interpretation  of  Lord  Hard- 
wicke's  statement,  made  by  a  great  statesman  on  a  con- 
spicuous occasion  was  indeed  a  startling  outcome  of  this 
doctrine  of  the  Best  Evidence.  It  was  thus  turned  into 
a  solvent  of  all  the  other  rules  that  had  been  forming; 
and  then,  itself  was  dissolved.  Whatever  was  peculiar  in 
the  English  law  of  evidence  here  of  a  sudden  vanished  ;  and 
all  was  reduced  to  the  condition  of  the  continental  law,  tluit 
system  where  the  jury  had  not  survived,  and  where  no  law 
of  evidence  had  grown  up.^  Burke's  sharp  attack  upon  the 
procedure  of  the  Lords  soon  led  to  something  that  helped  to 
clear  the  air.  His  urgent  insistence,  during  the  Hastings 
case,  that  the  House  of  Lords  was  not  rigidly  bound,  in 
impeachment  trials,  by  the  rules  of  evidence  which  gov- 
erned the  ordinary  law  courts,  was  sharply  controverted  by 
Edward  Christian,  in  1792,  in  a  pamphlet  which  was  his 
first  legal  publication.  He  was  then  teaching  law  at  Cam- 
bridge, where  nine  years  later  he  became  the  first  Downing 
Professor  of  the  laws  of  England,  a  chair  now  honored  by 

1  Burke  was  not  a  lawyer.  lie  began  the  study  of  law,  but  soon  aban- 
doned it.  It  may  help  to  moderate  our  surprise  at  such  a  declaration  as 
this,  if  we  remember  that  at  tlie  period  when  it  was  made,  the  English 
law  of  evidence,  properly  so  called,  had  emerge*l  but  little  out  of  the  iiisi 
prius  courts.  Sir  James  Stephen,  writing  in  1885  (Nuncomar  and  Impey, 
i.  121  n.),  remarks,  "After  mucli  study  of  the  law  of  evidence  my  opinion 
is  that  the  greater  part  of  tlie  present  law  came  into  definite  existence, 
after  being  for  an  unascertaiuable  period  the  practice  of  the  courts  (dif- 
fering by  the  way  to  some  extent  on  different  circuits),  just  about  one 
hundred  years  ago."  Steplien  was  a  liker  of  paradox  ;  but  there  is  some 
substantial  truth  in  this  remark.  To  be  sure  we  find  Lord  Kenyon  saying 
in  1790  {R.  v.  Eriswell,  3  T.  R.  707),  in  holding,  where  he  was  one  of  an 
evenly  divided  court,  that  a  sworn  statement,  before  justices,  of  one  now 
insane  and  so  unable  to  testify,  could  not  be  received,  — that  "the  rules 
of  evidence  .  .  .  have  been  matured  by  the  wisdom  of  ages,  and  are  now 
revered  from  their  antiquity,"  etc.  In  comparing  that  statement  with 
Stephen's,  a  century  later,  all  depends  on  what  is  meant  when  yo'^  speak 
of  the  rules,  or  law,  of  evidence.  Lord  Kenyon  doulitless  included  those 
numerous  exclusions  of  evidence,  running  far  back  into  the  Year  Books, 
which  go  upon  grounds  of  substantive  law  and  pleading,  and  hold  that 
what  is  offered  does  not  maintain  tlie  issue. 


494  LAW  OF  EVIDENCE. 

the  learning  and  accomplishments  of  Professor  Maitland. 
Burke,  in  the  House  of  Commons,  in  the  same  year,  replied 
to  the  positions  of  Christian ;  whereupon  the  latter  wrote 
what  he  called  a  "Dissertation  upon  Evidence  before  the 
House  of  Lords."  Although  written  in  1792,  this  was  not 
published  until  1820,  at  a  time  when  the  proceedings  of  the 
Lords,  on  occasion  of  the  purely  legislative  question  of 
passing  a  bill  of  pains  and  penalties  against  Queen  Caroline, 
called  out  from  Professor  Christian  a  further  brief  paper 
maintaining  the  same  doctrine  as  applicable  to  those  pro- 
ceedings, and  thus  led  to  the  printing  of  the  whole  work. 
In  this  dissertation,  thus  appearing  to  have  been  written  in 
1792,  Christian  introduces  a  passage  about  the  Best  Evi- 
dence, afterwards  preserved  in  his  notes  to  the  twelfth 
edition  of  Blackstone,  in  1794,  the  year  in  which  Burke's 
Report  on  the  Lords'  Journal  is  dated.  At  the  passage 
about  the  Best  Evidence,  in  Blackstone's  third  volume, 
which  I  have  already  qnoted,^  Christian  adds  the  note  above 
mentioned,  drawn  from  his  previous  answer  to  Burke: 
"No  rule  of  law,"  he  says,  "is  more  frequently  cited  and 
more  generally  misconceived  than  this.  It  is  certainly 
true  when  rightly  understood  ;  but  it  is  very  limited  in  its 
extent  and  application.  It  signifies  nothing  more  than 
that,  if  the  best  legal  evidence  cannot  possibly  be  produced, 
the  next  best  legal  evidence  shall  be  admitted.  Evidence 
may  be  divided  into  primary  and  secondary ;  and  the 
secondary  evidence  is  as  accurately  defined  by  the  law  as 
the  primary.  But  in  general  the  want  of  better  evidence 
can  never  justify  the  admission  of  hearsay,  interested  wit- 
nesses, copies  of  copies,  etc.  Where  there  are  exceptions 
to  general  rules,  these  exceptions  are  as  much  recognized 
by  the  law  as  the  general  rule  ;  and  where  boundaries  and 
limits  are  established  by  the  law  for  every  case  that  can 
possibly  occur,  it  is  immaterial  what  we  call  the  rule  and 
what  the  exception." 

These  keen  observations,  although  attributing  to  the  rules 

^  Supra,  491. 


THE  BEST  EVIDENCE.  495 

of  evidence,  rightly  so  called,  much  too  great  an  elaboration 
and  completeness,  nevertheless  went  to  the  root  of  this 
matter.  An  old  principle  which  had  served  a  useful  pur- 
pose for  the  century  while  rules  of  evidence  had  been  form- 
ing and  were  being  applied,  to  an  extent  never  before 
known,  while  the  practice  of  granting  new  trials  for  the 
jury's  disregard  of  evidence  had  been  developing,  and  judi- 
cial control  over  evidence  had  been  greatly  extended,  — 
this  old  principle,  this  convenient,  rough  test,  had  survived 
its  usefulness.  A  crop  of  specific  rules  and  exceptions  to 
rules  had  been  sprouting,  and  hardening  into  an  indepen- 
dent growth.  It  had  become  perfectly  true  that  in  many 
cases  it  made  no  difference  whatever  whether  a  man  offered 
the  best  evidence  that  he  could  or  not,  —  the  best  evidence 
that  the  nature  of  the  case  admitted,  the  best  ex  natura  rei, 
as  some  judges  said,  or  the  best,  rebus  sic  stantibus,  as 
others  saj.d  ;  —  none  the  less  it  was,  in  many  cases,  rejected. 
The  two  or  three  great  specific  and  typical  doctrines,  indeed, 
that  had  been  seized  upon  and  generalized  into  this  dogma 
of  the  Best  Evidence,  remained ;  the  doctrines  that  deposi- 
tions of  witnesses  could  not  be  produced  to  a  jury,  if  the 
witness  himself  could  be  produced ;  that  writings  by  which 
a  jury  was  to  be  informed,  must  be  submitted  to  their 
inspection  if  possible ;  that  the  witnesses  to  an  attested 
document  must  be  produced  if  they  could  be  had.  But  all 
these  doctrines  had  a  footing  and  characteristics  of  their 
own,  and  each  was  working  out  its  own  discriminations  and 
its  own  exceptions.  The  rule,  itself,  of  the  Best  Evidence, 
in  its  twofold  aspect,  —  (1)  that  every  man  must  bring  the 
best  evidence  that  he  could,  and  (2)  that  the  best  he  could 
should  be  received,  —  was  no  longer  fit  to  serve  any  purpose 
as  a  working  rule  of  exclusion.  Its  continued  life,  if  life  . 
it  was  to  have,  must  be  that  of  a  large  principle  to  aid  the 
judges  in  time  to  come  in  justly  shaping  the  development  of 
the  existing  rules  of  evidence,  and  in  marking  out  the  lines 
on  which  the  reform  of  these  rules  might  safely  be  con- 
ducted at  the  hands  of  the  judiciary. 


496  LAW  OF  EVIDENCE. 

But  the  sagacious  observations  of  Christian  were  little 
heeded;  they  were  probably  little  known.  We  find  Lord 
Keuyon,  at  nisi  iirius,  in  1797,  holding  that  in  determining 
the  conformity  of  a  busliel  measure  to  the  regular  standard, 
the  bushel  measure  itself  must  be  produced.  "  The  best 
evidence  the  nature  of  the  case  would  admit  of  was  a  pro- 
duction of  both  measures  in  court,  and  a  comparison  of 
them  before  the  jury."  And  this  doctrine,  as  applicable  to 
everything,  was  actually  laid  down  in  a  treatise  in  1820,  as 
a  general  principle  of  the  English  law.^  "  As  the  evidence 
of  sense,"  the  writer  says,  "is  undoubtedly  the  most  per- 
fect by  which  that  knowledge  can  be  obtained,  so,  if  the 
person  or  object  can  be  brouglit  into  the  presence  of  the 
court,  no  inferior  evidence  shall  be  admitted."  In  reality 
no  such  application  of  the  principle  was  established  in  the 
English  law ;  and  this  doctrine  that  the  Best  Evidence  rule 
applies  to  things,  has  been  emphatically  repudiated  by  the 
courts.^  Of  course  I  am  speaking  of  definite  rules  of  exclu- 
sion ;  not  of  arguments  as  to  tlie  moral  weight  of  what  is 
received.  Again  in  1802,  in  a  famous  case  involving  a  very 
large  sum  of  money,  where  the  plaintiff's  witness  had  died, 
and  the  only  other  person  directly  cognizant  of  the  facts 
was  tlie  defendant's  agent;  and  where  the  plaintiff,  wishing, 
naturally,  to  avoid  calling  the  adversary's  man  as  a  witness, 
rested  his  case  on  a  variety  of  circumstances  tending  to 
prove  it,  the  Court  of  King's  Bench  nonsuited  him.  Lord 
Ellenborough  said :  "  The  best  evidence  should  have  been 
given  of  which  the  nature  of  the  thing  was  capable.  The 
best  evidence  was  to  have  been  had  by  calling,  in  the 
first  instance,  upon  the  people  immediately  and  officially 
employed  in  the  delivery  and  in  the  receiving  the  goods  on 
board,  .  .  .  And  though  the  one  of  these  persons  .  .  .  was 

1  Glassford  on  l^'viiloiico  ;  in-iujiiiiilly  wriltcii  as  an  article  for  the  Sup- 
plement to  tlie  Kncyclo))ie(lia  Britannica,  l)iit  I'otiiul  too  long  for  that  piir- 
poHe,  and  sej)aratcly  jirinted. 

2  Queen  v.  Francis,  L.  K.  2  C.  C.  K.  128  (1874)  ;  Lucas  v.  Williams, 
00  L. '!".  Ifr-ii.  700. 


THE  BEST  EVIDENCE.  497 

dead,  it  did  not  warrant  the  plaintiff  in  resorting  to  an 
inferior  and  secondary  species  of  testimony,  namely,  the  pre- 
sumption and  inference  arising  from  a  non-communica- 
tion to  other  persons  on  board,  as  long  as  the  military 
conductor,  the  other  living  witness  .  .  .  concerned  in  .  .  . 
shipping  the  goods  on  board,  could  be  resorted  to."  This 
special  doctrine,  however,  has  not  been  generally  accepted, 
and  the  condemnation  of  it  by  Starkie,  and  Phillips  and 
Amos,  in  their  treatises,  no  doubt  truly  represents  the  law. 

But  as  regards  the  main  rule  of  the  Best  Evidence,  in 
its  general  application,  the  text-books  which  followed  Gil- 
bert, beginning  with  Peake  in  1801,  and  continuing  with  the 
leading  treatises  of  Phillips  in  1814,  Starkie  in  1824,  Green- 
leaf  in  1842,  Taylor  in  1848,  and  Best  in  1849  all  repeat  it. 
But  it  is  accompanied  now  with  so  many  explanations  and 
qualifica'tions  as  to  indicate  the  need  of  some  simpler  and 
truer  statement,  which  should  exclude  any  mention  of  this 
as  a  working  rule  of  our  system.  Indeed  it  would  probably 
have  dropped  naturally  out  of  use  long  ago,  if  it  had  not 
come  to  be  a  convenient,  short  description  of  the  rule  as  to 
proving  the  contents  of  a  writing.  Regarded  as  a  general 
rule,  the  trouble  with  it  is  that  it  is  not  true  to  the  facts, 
and  does  not  hold  out  in  its  application ;  and  in  so  far  as  it 
does  apply,  it  is  unnecessary  and  uninstructive.  It  is 
roughly  descriptive  of  two  or  three  rules  which  have  their 
own  reasons  and  their  own  name  and  place,  and  are  well 
enough  known  without  it.  When  explained  theoretically, 
and  treated  as  a  working  rule,  it  is  restricted  to  the  situa- 
tion Avhere  the  evidence  which  is  offered  discloses,  on  its 
face,  that  there  is  something  behind  it  for  which  it  is  a 
substitute. 

Let  us  therefore  look  at  the  Best  Evidence  rule,  in  its 
character  as  a  specific  rule  forbidding  substitutionary  evi- 
dence, i.e.,  such  as  shows  on  its  face  that  there  is  some- 
thing directer  and  better  behind  it.  In  this  sense  it  is  a 
phrase  which  has  been  thought  to  group  under  one  name 
at  least  three  other  specific  rules,  namely:  (1)  If  you  would 

32 


498  LAW   OF   EVIDENCE. 

iutroduce  before  a  jury  the  statements  of  a  witness,  you 
must  produce  the  witness  in  person  ;  (2)  If  you  would  intro- 
duce to  a  jury  the  contents  of  a  writing,  you  must  produce 
the  writing  itself;  (3)  If  you  would  prove  to  a  jury  the 
execution  of  an  attested  document,  you  must  produce  the 
attesting  witnesses.  In  each  case  secondary  modes  of  proof 
are  allowed  under  more  or  less  definite  circumstances.  In 
each  we  have  the  general  notion  of  primary  and  secondary 
evidence. 

But  these  three  requirements  have  not  a  common  origin, 
nor  are  they  in  fact  the  developments  of  a  common 
principle. 

What  is  the  origin,  and  what  has  been  the  shaping  in- 
fluence and  development  of  these  several  rules  ? 

1.  As  regards  the  first  of  them,  which  is  at  the  bottom 
of  the  great  rule  against  hearsay,  we  seem  to  see  an  indica- 
tion of  its  source,  when,  some  five  centuries  and  a  half  ago, 
the  English  Court  of  Common  Pleas  was  marking  off  the 
function  of  the  jurors  from  that  of  the  attesting  witnesses 
to  a  deed.  It  was  already,  even  in  those  days,  an  ancient 
practice,  when  the  execution  of  a  deed  was  denied,  to  sum- 
mon the  attesting  witnesses  with  the  jury  and  to  send  them 
out  to  a  joint  deliberation.^  I'hey  were  not  regularly 
examined  in  court.  In  1349,^  one  of  these  witnesses  had 
been  summoned  not  merely  with  the  jury,  but  on  the  jury 
panel  itself.  He  was  ousted,  and  Thorpe,  C.  J.,  said  there 
must  be  a  jury  wholly  separate  from  witnesses;  and  wit- 
nesses can  only  be  joined  to  the  jury,  and  testify  to  them 
the  fact.  It  is  the  jury,  itself,  he  went  on,  who  render  the 
verdict,  and  not  the  witnesses ;  the  two  have  different 
oaths ;  the  witnesses  swear  to  tell  the  truth,  i.  e.,  what  they 
see  and  hear;  and  the  jury  to  say  the  truth  according  to 
the  best  of  their  knowledge.  This  remark  imports  of 
course  tliat  conclusions  from  the  facts  in  evidence  were 
only  for  the  jury,  and  we  may  see  here  the  roots  of  the  rule 

1  Su}>r(i,  97. 

2  23  Ass.  11. 


THE   BEST   EVIDENCE.  499 

against  opinion  evidence  as  well  as  hearsay.  This  defini- 
tion of  a  witness's  function,  as  we  have  already  seen,  was 
a  very  old  one.  The  formula  in  the  old  law  for  a  witness 
was  that  he  was  to  state  what  he  had  seen  and  heard,  quod 
vidi  et  audivi  ;  de  visu  suo  et  auditu.^  To  state  what  some 
one  else  had  seen  and  heard,  was  the  function  of  that  some 
one  else  and  not  of  the  witness.  Each  person  must  give 
his  own  testimony.  And  accordingly  a  century  later,^ 
where  an  essoiner  (i.  e.,  the  attorney  of  a  party  who  failed 
to  appear  in  court  at  his  regular  day,  and  who  brought 
that  person's  excuse)  undertook  to  give  as  the  principal 
reason  that  he  was  in  the  king's  service ;  and  was  put 
under  oath,  and  then,  being  asked  if  this  were  so,  said  he 
was  so  informed,  but  would  not  say  in  terms  that  he  was 
in  the  king's  service,  —  Newton,  C.  J.,  rejected  his  state- 
ment. "  The  essoiner,"  he  said,  "  is  sworn,  and  is  not  Avill- 
ing  to  say  that  the  principal  is  in  the  service  of  the  king. 
The  statute  runs  that  the  essoiner  shall  testify  in  court 
(testetur  in  curia)  ;  but  this  is  not  testifying."  It  seems 
then  that  repeating  hearsay  was  not  regarded  as  legitimate 
testifying.  Each  perceiving  witness  must  give  his  own 
testimony. 

There  had  of  course  always  been  occasion  for  witnesses 
to  testify  to  the  judges  as  in  the  case  of  the  essoiner,  just 
mentioned ;  and  for  transaction  witnesses,  e.  g.,  persons  who 
had  allowed  themselves  to  be  called  as  preappointed  wit- 
nesses to  a  sale  of  goods,  or  the  execution  of  a  deed.  These 
cases  and  others  of  the  sort  run  back  to  a  time  before  the 
days  of  juries,  and  the  practices  relating  to  them  in  the  old 
Germanic  law  come  down  into  our  own.  Nos  testes  .  .  . 
scirmis,  et  oculis  nostris  vidimus  et  bene  nobis  cognituni  est, 
is  one  of  the  old  forms. ^ 

Witnesses  testifying  regularly  to  juries  had  probably  not 
yet  come   upon  the  scene  at  the  time  of  the  first  of  the 

^  Supra,  18. 

2  Y.  B.  20  H.  VI.  20,  16. 

^  Brunuer,  Schw.  54. 


500  LAW   OF  EVIDENCE. 

two  cases  above  cited,  namely,  in  1349.  We  find  them,  how- 
ever, in  the  next  century.  Whenever  it  was  that  they  first 
appeared,  their  coming  was  a  very  remarkable  event.  We 
are  to  remember  that  the  jury  themselves  were  witnesses, 
—  none  the  less  so  because  they  were  also  triers.  They 
were  the  old  community  witnesses.  To  allow  the  transac- 
tion witnesses,  e.  g.,  witnesses  to  deeds,  to  be  added  to  thera 
as  helpers  was  easily  and  very  early  done.  But  centuries 
had  to  pass  in  the  use  of  juries  before  the  idea  emerged  of 
regularly  allowing  parties  to  bring  the  ordinary  casual  wit- 
ness to  testify  to  these  other  witnesses,  the  jury.  It  was 
very  long  indeed  before  the  hint  which  the  case  of  trans- 
action witnesses  was  forever  making  was  taken.  When  it 
was  taken,  and  when  witnesses  came  to  testify  freely  in 
public  to  the  jury, — certainly  not  later  than  Fortescue's 
time,  in  the  fifteenth  century,  —  they  came  in  under  the  old 
notion  and  definition  of  a  witness.  He  was  one  who  testi- 
fied quod  vidl  et  audivi  —  what  he  had  seen  and  heard. 
That  excluded  hearsay.  The  existence  of  juries  and  the 
necessity  of  discriminating  the  office  of  a  witness  from  that 
of  a  juror,  drew  attention  to  the  fact  that  the  witness  to 
any  particular  thing,  being  one  who  spoke  to  the  fact  that 
he  had  seen  and  heard  that  thing,  or,  as  Vaughan,  C.  J., 
said,  in  1670,^  "generally,  or  more  largely,  to  what  hath 
fallen  under  his  senses,"  contributes  to  a  jury's  knowledge, 
just  this  and  no  more.  All  the  rest  they  themselves  were 
to  furnish,  such  as  general  knowledge,  hearsay,  their  own 
private  knowledge,  including  liearsay  and  inferences  from 
it,  and  the  reasoning  and  conclusions  involved  in  compar- 
ing and  digesting  all  that  they  knew  or  had  heard  from 
others.  Afterwards,  as  the  scope  of  the  jury's  function 
narrowed  and  they  became  merely  judges  on  what  was 
furnished  them  by  witnesses,  the  original  discrimination 
l)('t\v('oii  the  jury  and  the  witness  lost  its  old  application, 
and  hud  a  new  form.  ISTow  the  contrast  was  between  wit- 
nesses, and  a  jury  wlio  were;  judges,  knowing  nothing  of  the 
fact. 

^  Bushell's  case,  Vaughan,  135. 


THE   BEST   EVIDENCE.  501 

The  objection,  then,  of  hearsay  goes,  fundamentally,  to 
the  point  that  something  which  should  come  through  an 
original  witness  is  sought  to  be  put  in  at  second  hand,  by 
one  to  whom  it  has  been  told,  one  who  is  not  a  witness 
properly  speaking,  who  did  not  perceive  it  and  cannot 
therefore  testify  to  it,  but  only  to  the  fact  that  somebody 
said  so.  It  would  operate  to  nullify  the  requirement  that 
witnesses  should  personally  appear  and  testify  publicly  in 
court,  if  the  statements  of  the  original  perceiver  could  be 
got  in  through  another  person ;  and  it  Avas  always  the  rule 
that  witnesses  should  thus  publicly  appear  and  testify  ;  as 
it  was  the  rule  that  jurymen  and  judges  and  parties,  or 
their  attorneys,  should  appear  and  perform  their  several 
functions  in  public. 

In  leaving  this  part  of  the  subject  we  may  remark  again 
the  fact  that  hearsay  has  not  been  allowed  to  figure  in 
English  law  as  good  circumstantial  evidence ;  that  is  to 
say,  the  statement  of  a  person  not  called  as  a  witness  is  not 
in  general  made  admissible  by  the  fact  that  it  was  given 
under  circumstances  which  impart  to  it  a  special  credit. 
This  may,  perhaps,  come  about  hereafter.  But  thus  far  the 
course  of  our  law  of  evidence  has  been  to  admit  this  sort  of 
thing  only  when  these  special  circumstances  were  joined  to 
the  fact  of  the  original  speaker's  death,  or,  in  some  cases, 
his  other  disability.  Neither  the  original  speaker's  death, 
alone,  nor  the  highly  probative  character  of  the  circum- 
stances under  which  he  spoke,  alone,  are  enough  ;  and  not 
the  two  together  except  in  special  cases.  This  sort  of  cir- 
cumstantial evidence  is  separated  from  all  others  in  the 
English  law  of  evidence,  is  classified  as  hearsay,  and  as 
such  is  condemned.  Such  is  the  emphasis  which  our  law 
puts  upon  its  hearsay  prohibition,  an  emphasis  traceable  in 
its  origin  and  in  its  continuance  to  the  fact  that  witnesses 
at  common  law  testify  mainly  to  juries,  persons  who  were 
formerly  themselves  witnesses,  and  not  merely  to  judges. 

2.  As  regards  the  requirement  that  the  proof  of  the 
execution  of  an  attested  document  must  be  by  the  witnesses 


502  LAW  OF  EVIDENCE. 

if  they  can  be  had,  this,  also,  has  a  clear  and  very  old  origin. 
Such  persons  belonged  to  that  very  ancient  class  of  trans- 
action or  business  witnesses,  running  far  back  into  the  old 
Germanic  law,  who  were  once  the  only  sort  of  witnesses 
that  could  be  compelled  to  come  before  a  court.  Their 
allowing  themselves  to  be  called  in  and  set  down  as  attest- 
ing witnesses  was  understood  to  be  an  assent  in  advance 
to  such  a  compulsory  summons.  Proof  by  witnesses  could 
not  be  made  by  those  who  merely  happened  casually  to 
know  the  fact.  However  exact  and  full  the  knowledge  of 
any  person  might  be,  he  could  not,  in  the  old  Germanic 
procedure,  be  called  in  court  as  a  witness,^  unless  he  had 
been  called  at  the  time  of  the  event  as  a  preappointed  wit- 
ness. It  was  a  part  of  such  a  system  and  in  accordance 
with  such  a  set  of  ideas  that  witnesses  formally  allowed 
their  names  to  be  written  into  deeds  in  large  numbers. 
When  jury  trial,  or  rather  proof  by  jury,  as  it  originally 
was,  came  in,  the  old  proof  by  witnesses  was  joined  with  it 
when  the  execution  of  the  deed  was  denied  ;  ^  and  the  same 
process  that  summoned  the  twelve,  summoned  also  these 
witnesses.  The  phrase  of  the  precept  to  the  sheriff  was 
summone  duodeclm  [etc.  etc.]  cum  aliis.  The  presence  of 
these  witnesses  was  at  first  as  necessary  as  that  of  the  jury. 
Great  delays  and  embarrassments  attended  such  a  require- 
ment where  the  number  of  witnesses  might  be  so  great ; 
the  jury  was  cumbersome  enough  anyway.  Accordingly,  in 
1318,  the  presence  of  the  witnesses  was  made  no  longer 
absolutely  necessary;  they  must  still  be  summoned,  but  the 
case  might  go  on  without  them.  After  another  century 
and  a  half  the  process  against  the  witness  became  no 
longer  a  necessity.  It  was  not  issued  unless  it  were 
called  for.  After  still  another  century,  in  1562-3,  process 
against  all  kinds  of  witnesses  was  allowed,  requiring  them 
to  come  in,  not  with  the  jury  or  as  a  part  of  the  jury,  but 
to  testify  before  them  in  open  court,  and  then  the  old  pro- 

1  Brunner,  Sclnv.  50,  53. 

2  Supra,  97. 


THE   BEST   EVIDENCE.  503 

cedure  of  summoning  such  witnesses  with  the  jury  seems 
to  have  died  out.  "Such  process  against  witnesses,"  says 
Coke,^  referring  to  the  old  process,  "has  vanished."  There 
was  never  a  time  when  such  witnesses,  the  regular  trans- 
action witnesses,  could  not  in  one  way  or  the  other  be 
summoned  and  compelled  to  come  in.  As  regards  ordinary 
witnesses  to  the  jury,  compulsory  process  seems  not  to 
have  existed  before  1562.^  Since  1318,  the  attendance  of 
the  transaction  witnesses  might  be  dispensed  with  if  they 
could  not  be  got;  but  the  necessity  of  summoning  them 
existed  for  most  of  this  long  period.  As  late  as  the  early 
part  of  the  eighteenth  century  it  was  doubtful  whether  a 
deed  could  be  proved  at  all,  if  the  attesting  witnesses  came 
in  and  denied  it.^  Half  a  century  later.  Lord  Mansfield, 
while  reluctantly  yielding  to  what  he  stigmatized  as  a  cap- 
tious objection  that  you  must  produce  the  witness,  declared 
that  "  It  is  a  technical  rule  that  the  subscribing  witness 
must  be  produced ;  and  it  cannot  be  dispensed  with  unless 
it  appeared  that  his  attendance  could  not  be  produced." 
And  still  a  generation  later,  in  1815,  Lord  EUenborough, 
in  asserting  the  same  thing,  savagely  thrust  out  all  argu- 
ments against  this  doctrine,  and  slammed  the  door  on  them. 
"The  rule,"  he  said,  "is  universal  that  you  must  first  call 
the  subscribing  witness.  ...  If  any  general  rule  is  to  pre- 
vail, this  is  certainly  one  that  is  as  fixed,  formal,  and  uni- 
versal as  any  that  can  be  stated  in  a  court  of  justice." 

The  pedigree  of  this  rule  is  not  only  clear,  it  has  been 
repeatedly  recognized  in  our  cases.* 

3.  The  third  sort  of  case,  that  which  has  always  been  the 
chief  illustration  of  the  Best  Evidence  principle,  the  doc- 
trine that  if  you  would  prove  the  contents  of  a  writing,  you 
must  produce  the  writing  itself,  also  runs  back  to  the  old 
law,  existing  before  witnesses  testified  to  the  jury.     It  is 

1  1  Inst.  6  b,  published  in  1628.  -  St.  5  Eliz.  c.  9,  s.  6. 

^  Thayer's  Cases  on  Evidence,  776. 

*  Fox  r.  Reil,  3  Johns.  477,  per  Kent,  C.  J.;  Brigham  v.  Palmer, 
3  Allen,  459. 


504  LAW   OF   EVIDENCE. 

connected  with  the  doctrine  of  jn-ofert,  in  pleading,  whicli 
required  a  party  relying  upon  a  document,  as  a  ground  of 
action  or  defence,  to  produce  it  bodily  to  the  court. 
Stephen  in  his  Pleading  ^  gives  as  the  explanation  of  the 
doctrine  oi  jyrofevt,  that  it  was  simply  the  way  of  complying 
with  the  rule  that  required  an  offer  of  a  mode  of  proof 
when  one  pleaded  affirmatively.  "  As  the  pleader,  of  that 
time,"  he  says,  "  concluded  in  some  cases  by  offering  to 
prove  by  jury  or  by  the  record;  so  in  others,  he  maintained 
his  pleading  by  producing  a  deed  as  proof  of  the  cause 
alleged.  .  .  .  Afterward  the  trial  by  jury  becoming  more 
universally  prevalent,  it  was  often  applied  (as  at  the  pres- 
ent day)  to  determine  questions  arising  as  to  the  genuine- 
ness or  validity  of  the  deed  itself  so  produced,  and  from 
this  time  a  deed  seems  to  have  been  no  longer  considered 
as  a  method  of  proof  distinct  and  independent  of  that  by 
jury."  Whatever  qualifications  may  be  required  in  accept- 
ing this  statement,  it  seems  probable  that  it  is  substantially 
true.  The  use  of  documents,  in  pleading  and  proof,  long 
antedates  the  use  of  ordinary  witnesses  to  the  jury.  The 
vast  majority  of  documents  used  in  trials  in  early  times 
were  no  doubt  of  the  solemn,  constitutive,  and  dispositive 
kind,  instruments  under  seal,  records,  certificates  of  high 
officials,  public  registers,  and  the  like.  Such  documents,  if 
the  authenticity  of  them  were  not  denied,  "  imported  verity," 
as  the  phrase  was,  fixed  liability  and  determined  rights. 
As  questions  were  tried  by  record  and  by  Domesday 
Ijook,  so  they  were  tried  by  other  documents.  As  has  been 
said,  "  If  a  man  said  he  was  bound  \_e.  g.,  by  a  sealed  instru- 
ment], ho  ivas  bound."  '^  Of  course,  therefore,  whoever  would 
use  a  document  of  this  character  must  produce  it,  just  as 
the  court  had  to  have  the  jury  in  court,  in  trial  (or  proof) 
by  jury,  and  tlic  record,  in  trial  (or  proof)  by  record.  As  the 
trial  by  jury  displaced  one  after  another  of  the  older  modes 
of  trial,  sometimes  these  were  mingled  with  it  in  a  confused 

1  Tyler's  cil.  .382,  and  also  note  86. 
^  Holmes,  Com.  Law,  262. 


THE   BEST   EVIDENCE.  505 

way.  The  procedure  about  joining  attesting  witnesses  to 
deeds  with  the  jury  is  probably  an  instance  of  this, — a 
combination  of  the  old  trial  by  witnesses  with  the  newer 
trial  by  jury.  In  the  same  way,  it  seems  probable,  the 
trial  by  documents,  in  fading  away  into  trial  by  jury,  left 
traces  of  itself  in  the  doctrine  of  profert  in  pleading,  and, 
ultimately,  in  the  practice  of  producing  the  document  itself 
in  evidence  to  the  jury.  A  doctrine  which  applied  to  the 
solemn  and  constitutive  sort  of  documents,  i.  e.,  to  the  great 
mass  of  those  which  were  used  and  discussed  in  courts, 
might  naturally  attract  to  itself  and  cover  all  documents ; 
and  in  later  days  the  rule  of  evidence  firmly  holds  its  place 
on  the  ground  of  its  excellent  sense  and  its  tendency  to 
promote  justice. 

These  three  great  illustrations  of  what  is  called  the  Best 
Evidence  rule  have,  then,  no  common  origin.  Each  stands 
on  its  own  bottom  and  has  had  its  own  reasons  for  exist- 
ence, and  for  continuing.  To  attribute  results  like  these, 
traceable  to  the  slow  working  out  of  ancient  customs, 
methods,  and  institutions,  to  the  operation  of  a  controlling 
principle  of  the  "  Best  Evidence,"  is  to  forget  the  facts  and 
lean  on  idle  theories.  This  name  and  classification,  more- 
over, tend  to  confusion  ;  they  seem  to  mean  a  great  deal, 
and  when  they  come  to  be  explained,  they  turn  out  to  mean 
very  little.  The  term  should  be  discarded,  in  any  sense  of 
a  working  rule  of  exclusion  ;  all  that  it  truly  imports  may 
be  expressed  by  the  simple  and  useful  terms,  "  primary " 
and  **  secondary "  evidence,  as  applied  to  these  several 
cases.  In  only  one  way,  as  it  seems  to  me,  is  it  possible 
any  longer  to  use  this  old  phraseology  with  advantage.  It 
served  a  useful  purpose  in  the  early  days  of  the  law  of 
evidence,  while  the  rules  of  the  subject  were  in  their 
infancy,  as  a  large  moral  principle  and  not  as  a  precise 
legal  rule ;  and  so  in  time  to  come,  as  the  discretion  of 
courts  is  enlai'ged,  it  may  continue  to  serve  a  useful  pur- 
pose as  a  general  principle,  offering  suggestions  to  guide 
the  discretion  of  the  courts. 


506  LAW   OF   EVIDENCE. 

Upon  the  whole,  then,  it  may  be  said  that  the  Best  Evi- 
dence rule  was  originally,  in  days  when  the  law  of  evidence 
had  not  yet  taken  definite  shape,  a  common  and  nseful 
phrase  in  the  mouths  of  judges  who  were  expressing  a  gen- 
eral maxim  of  justice,  without  thinking  of  formulating  an 
exact  rule ;  and  that  Gilbert,  in  his  premature,  ambitious, 
and  inadequate  attempt  to  adjust  to  the  philosophy  of 
John  Locke  the  rude  beginnings  and  tentative,  unconscious 
efforts  of  the  courts,  in  the  direction  of  a  body  of  rules 
of  evidence,  hurt  rather  than  helped  matters.  By  holding 
np  this  vague  principle  as  the  "  first  and  most  signal  rule  " 
of  an  excluding  system,  and  imparting  to  our  law  at  that 
period  such  systematized,  and  far-looking  aims  in  the 
region  of  evidence,  he  threw  everything  out  of  focus.  A 
cheap  varnish  of  philosophy  took  the  place  of  an  ordered 
statement  of  the  facts.  In  Gilbert's  attempt  to  deal  exactly 
with  the  question,  he  was  driven  to  take  away  from  the 
large  principle  of  the  Best  Evidence  a  chief  part  of  its 
natural  and  intended  reach,  and  to  turn  it  into  a  narrow 
declaration  that  you  must  not  offer  anything  which  itself 
imports  that  it  is  a  substitute  for  something  better.  Such 
a  reduction  was  necessary,  if  one  would  have  an  exact  rule. 
But  it  was  not  necessary  for  those  larger  purposes  which 
thus  far  it  had  served.  The  judges,  as  often  happens, 
knew  what  they  needed  better  than  the  book-writers,  even 
if  the  book-writer  was  himself  a  judge,  as  Gilbert  was. 
Gilbert's  definition  was,  indeed,  one  application  of  the  larger 
principle  that  they  used  in  licking  into  shape  their  new 
bantling,  of  a  law  of  evidence ;  but  that  was  all.  And 
they  kept  on  applying  maxims  of  sense  and  justice,  and 
this  one,  among  others,  in  its  wide,  natural  sense,  until 
these  hardened  into  one  and  another  definite  and  specific 
rule  of  nisi,  prius  practice,  and  became  our  present  law  of 
evidence.  Lord  Hardwicke's  utterance  about  there  being 
but  "one  rule  of  evidence,  tlie  best  that  the  nature  of  the 
case  will  admit,"  bad  no  sucih  limited  notion  as  the  follow- 
ers of  Gilbert  sought  to  put  upon  it.     It  was  that  same 


THE   BEST   EVIDENCE.  507 

broad,  untechnical  declaration  of  a  general  principle  of 
justice,  impossible  to  be  reduced  into  a  definite  rule  of 
exclusion,  with  which  Holt  and  his  contemporaries  began. 
The  attempt  to  use  it,  on  the  one  side,  as  a  denial  of  the 
existence  of  any  excluding  rule  at  all,  and,  on  the  other,  as 
in  itself  a  definite  working  rule  of  wide  reach  and  signifi- 
cance, were  both  dealt  with  justly  by  Christian,  a  hundred 
years  ago.  Our  experience  since  then  may  show  us,  I 
think,  that  we  shall  help  to  clear  the  subject,  and  keep  our 
heads  clear,  if  we  drop  the  name  and  the  notion  of  any 
specific  separate  rule  of  the  Best  Evidence.  In  doing  that, 
we  need  not  dismiss  the  great  maxim  of  fair  dealing  that 
animated  the  judges  who  brought  in  this  phrase  and,  in 
many  applications,  used  it  for  a  century  in  shaping  the 
law;  a  principle  which  says,  not  that  one  must  always  fur- 
nish the  best  evidence,  and,  in  the  absence  of  it,  have  all 
else  excluded ;  or,  that  if  one  does  the  best  he  can,  this  will 
always  be  enough,  but  that  always,  morally  speaking,  the 
fact  that  any  given  way  of  proof  is  all  that  a  man  has, 
must  be  a  strong  argument  for  receiving  it,  if  it  be  in  a  fair 
degree  probative ;  and  the  fact  that  a  man  does  not  produce 
the  best  evidence  in  his  power  must  always  afford  strong 
ground  of  suspicion. 


608  LAW  OF  EVIDENCE. 


CHAPTER   XII. 

THE  PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.i 

Sir  Henry  Maine  had  occasion,  thirty  years  ago,  to 
make  some  special  study  of  the  English  system  of  Evi- 
dence, in  attempting  to  adapt  it  to  the  use  of  his  country- 
men in  governing  India.  In  "letting  his  intelligence  play 
freely  over  the  subject,"  he  was  led  to  remark  tliat  "the 
theory  of  judicial  evidence  is  constantly  misstated  or  mis- 
conceived even  in  this  country,  and  the  English  law  on  the 
subject  is  too  often  described  as  being  that  which  it  is  its 
chief  distinction  not  to  be,  —  that  is,  as  an  Organon,  —  as 
a  sort  of  contrivance  for  the  discovery  of  truth  which 
English  lawyers  have  patented."  And  after  pointing  out 
that  the  law  of  evidence  grew  out  of  the  jury  system,  he 
adds  truly  that  "the  English  rules  of  evidence  are  never 
very  scru])ulously  attended  to  by  tribunals  which,  like  the 
Court  of  Chancery,  adjudicate  both  on  law  and  on  fact, 
through  the  same  organs  and  the  same  procedure." 

And  yet  the  system  is  very  highly  praised.  Why  then 
should  it  be  so  quickly  abandoned  when  the  jury  is  gone  ? 
If  we  should  take  too  literally  the  undiscriminating  state- 
ments of  some  writers,  we  might  well  wonder  that  so  fine 
a  thing  should  not  always  be  used.  A  distinguished 
author  tells  us,  at  the  end  of  a  famous  treatise :  ^  "  The 
stuflont  will  not  fail  to  observe  the  symmetry  and  beauty 

1  As  rof^anls  tlic  form  of  tliis  cliapter  seo  uotc  at  tlie  title  of  Cliapter 
XL,  Ruprn,  484. 

2  Groenl.  Kvid.  i.  s.  584. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.   509 

of  tins  branch  of  the  law;  .  .  .  aud  will  rise  from  the 
study  of  its  principles  convinced,  with  Lord  Erskine,  that 
'  they  are  founded  in  the  charities  of  religion,  in  the  phi- 
losophy of  nature,  in  the  truths  of  history,  and  in  the 
experience  of  common  life.'"  I  think  that  it  would  be 
juster  and  more  exact  to  say  that  our  law  of  evidence  is  a 
piece  of  illogical,  but  by  no  means  irrational,  patchwork; 
not  at  all  to  be  admired,  nor  easily  to  be  found  intelligible, 
except  as  a  product  of  the  jury  system,  as  the  outcome  of 
a  quantity  of  rulings  by  sagacious  lawyers,  while  settling 
practical  questions,  in  presiding  over  courts  where  ordi- 
nary, untrained  citizens  are  acting  as  judges  of  fact. 
Largely  irrational  in  any  other  aspect,  in  this  point  of 
view  it  is  full  of  good  sense;  —  a  good  sense,  indeed,  that 
occasionally  nods,  that  submits  too  often  to  a  mistaken 
application  of  its  precedents,  that  is  often  short-sighted 
and  ill-instructed,  and  that  needs  to  be  taken  in  hand  by 
the  jurist,  and  illuminated,  simplified,  and  invigorated  by 
a  reference  to  general  principles. 

As  regards  Erskine's  often-quoted  remark,  given  above, 
quite  too  large  and  general  a  reach  has  been  imputed  to 
it.  It  was  a  part  of  the  opening  argument  in  Hardy's 
case,  in  1794,  and  had  reference  to  the  great  advocate's 
unsuccessful  contention  against  one  of  the  most  extraordi- 
nary, characteristic,  and  subsequently  discredited  results 
of  English  adjudication.  His  client  was  charged  with 
the  treason  of  compassing  the  King's  death,  and  the  overt 
act  of  a  conspiracy  to  depose  him.  Erskine  had  been 
inveighing  bitterly  against  a  doctrine  which  the  court 
afterwards  enforced  against  his  client  in  its  most  uncom- 
promising shape  —  the  doctrine,  namely,  that  in  such  a 
case  proof  of  the  conspiracy  to  depose  was,  in  legal  effect, 
proof  of  compassing  the  death,  and  not  merely  evidence 
of  it;  and  this  by  virtue  of  an  indisputable  "  presumption." 
"The  conspiracy  to  depose  the  King,"  said  Eyre,  C.  J.,  in 
his  charge  to  the  jury,^  "is  evidence  of  compassing  and 
1  24  St.  Trials,  col.  1361. 


510  LAW  OF  EVIDENCE. 

imagining  the  death  of  the  King,  conclusive  in  its  nature, 
so  conclusive  that  it  is  become  a  presumption  of  law, 
which  is  in  truth  nothing  more  than  a  necessary  and 
violent  presumption  of  fact,  admitting  of  no  contradic- 
tion." Such  a  doctrine,  of  course,  while  exhibiting  itself 
in  a  dress  of  evidence  and  presumption,  is,  in  reality,  a 
very  different  matter;  it  is  really  a  precept  in  the  substan- 
tive law  of  treason;  grounded,  indeed,  upon  a  conclusion 
of  evidence,  upon  what  is  usually  true  in  such  cases,  but 
none  the  less  a  doctrine  which  has  now  passed  out  of  the 
sphere  of  evidence,  and  even  out  of  the  legitimate  sphere 
of  presumption,  and  has  become  an  incontrovertible  rule 
of  the  substantive  criminal  law.  As  against  this  hard, 
judicially-legislated  principle,  Erskine  had  contended  that 
the  overt  act  was  only  a  piece  of  evidence;  that  the  intent 
to  kill  the  King  was  to  be  proved  to  the  jury  by  evidence 
which  really  did  convince  them  beyond  a  reasonable  doubt; 
that  a  conspiracy  to  depose  might  or  might  not,  according 
to  the  circumstances  of  the  particular  case,  suffice  to  prove 
the  intent  to  kill;  and  that  the  jury  must  themselves  be 
satisfied  that  it  did.  "My  whole  argument,"  he  said,  in 
substance,  towards  the  end,  "is  only  that  the  crime  of 
compassing  the  King's  death  must  be  found  by  you,  really 
believed  by  you;  and  beyond  a  reasonable  doubt.  You  are 
to  go  upon  the  ordinary  rules  of  evidence ;  not  upon  pre- 
cedents coming  down  from  evil  times.  The  rules  of  evi- 
dence as  they  are  settled  by  law  and  adopted  in  its  general 
administration,  are  not  to  be  overruled  or  tampered  with. 
They  are  founded  in  the  charities  of  religion,"  etc.  In 
saying  this  Erskine  was  not  engaged  in  any  general  esti- 
mate of  the  English  law  of  evidence;  he  was  pressing 
liome  a  jtarticular  point,  and  condemning  a  specific  con- 
tention; this  contention,  he  said,  was  barbarous  and  in- 
consistent with  those  general  principles  wliich  secured  to 
a  prisoner  the  free,  unfettered  exercise  of  tlie  jury's  judg- 
ment, instead  of  driving  them  to  a  verdict  by  an  irresistible 
legal   rule. 


rRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.     511 

I  have  said  that  our  law  of  evidence  is  ripe  for  the  hand 
of  the  jurist.  I  do  not  mean  for  the  Ifand  of  the  codifier; 
it  is  not}  but  for  a  treatment  which,  beginning  with  a 
full  historical  examination  of  the  subject,  and  continuing 
with  a  criticism  of  the  cases,  shall  end  with  a  restatement 
of  the  existing  law  and  with  suggestions  for  the  course  of 
its  future  development.  Such  an  undertaking,  worthily- 
executed,  if  it  should  commend  itself  to  the  bench,  would 
need  only  a  slight  co-operation  from  the  legislature  to  give 
to  the  law  of  evidence  a  consistency',  simplicity,  and  capac- 
ity for  growth  which  would  make  it  a  far  worthier  instru- 
ment of  justice  than  it  is. 

Let  us  look  at  this  part  of  our  law,  and  consider  (1) 
What,  in  fact,  we  have  now;  (2)  What  we  should  have, 
and  how  to  get  it. 

I.  We  have  now,  as  our  law  of  evidence,  in  the  form  in 
which  it  is  ordinarily  stated,  a  set  of  rules  of  great  volume 
and  complexity',  occupying,  with  the  illustrations  thought 
needful  for  their  exposition,  twelve  hundred  and  thirty- 
four  octavo  pages  in  Taylor's  last  (9th)  edition  of  his 
work  on  Evidence,  —  a  book  which  was  originally  an 
adaptation  of  Greenleaf's,  but  now  constitutes  the  chief 
English  book  on  the  subject.  The  few  principles  which 
underlie  this  elaborate  mass  of  matter  are  clear,  simple, 
and  sound.  But  they  have  been  run  out  into  a  great  re- 
finement of  discrimination  and  exception,  difficult  to  dis- 
cover and  apply;  and  have  been  overlaid  by  a  vast  body  of 
rulings  at  nisi  prius  and  decisions  in  banc,  impossible  to 
harmonize  or  to  fit  into  any  consistent  and  worthy  scheme. 
A  great  portion  of  these  rules,  as  laid  down  by  the  courts 
and  by  our  text  writers,  are  working  a  sort  of  intellectual 
fraud  by  purporting  to  be  what  they  are  not.  To  the  utter 
confusion  of  all  orderly  thinking,  a  court  is  frequently  repre- 
sented as  passing  on  questions  of  evidence  when  in  reality 
it*s  dealing  with  some  other  branch,  either  of  substantive 
law  or  procedure.  The  riales  are  thus  in  a  great  degree 
ill-apprehended,  ill-stated,  ill-digested.     Sometimes,  as  in 


512  LAW   OF   EVIDENCE. 

the  case  of  proving  attested  documents,  they  have  come 
down  out  of  practices  and  rules  of  mediaeval  procedure  by 
a  slow  process  of  change  that  has  concealed  their  pedigree 
and  their  real  nature  and  basis;  and  then  rules  of  this 
sort  have  come  to  be  applied  or  refused  application  merely 
according  to  their  letter,  or  according  to  some  false  imagi- 
nation of  reasons,  with  grotesque  results,  and  in  a  manner 
fanciful  and  unintelligent.  Sometimes  our  rules  have 
sprung  from  following  on  after  some  single  specific  ruling 
at  nisi  jjrlus,  wise,  perhaps,  in  the  particular  case,  but 
having  in  it  no  general  element  or  principle  which  should 
make  it  a  precedent;  and  soiuetiines,  on  the  other  hand, 
from  dealing  with  such  a  ruling,  as  if  it  were  only  a  nar- 
row and  particular  precedent,  and  failing  to  recognize  its 
true  character  as  illustrating  some  principle  of  sense  and 
convenience,  fit  to  be  spread  into  a  general  application. 
In  part  the  precepts  of  evidence  consist  of  many  classes 
of  exceptions  to  the  main  rules,  —  exceptions  that  are 
refined  upon,  discriminated,  and  run  down  into  a  nice  and 
difficult  attenuation  of  detail,  so  that  the  courts  become 
lost,  and  forget  that  they  are  dealing  with  exceptions ;  or 
perhaps  are  at  a  loss  to  say  whether  the  controlling  prin- 
ciple is  to  be  found  in  the  exception  or  in  the  general  rule, 
or  whether  the  exception  has  not  come  to  be  erected  into  a 
rule  by  itself.  In  part,  our  rules  are  a  body  of  confused 
doctrines,  expressed  in  ambiguous  phrases,  Latin  or  Eng- 
lish, half  understood,  but  glibly  used,  without  perceiving 
that  ideas,  pertinent  and  just  in  their  proper  places,  are 
being  misconstrued  and  misapplied. 

Let  me,  in  part,  illustrate  what  I  mean.  There  is  a 
great  bulk  of  cases,  constantly  swelling,  which  are  referred 
to  what  is  known  as  the  "parol  evidence  rule."  Speaking 
generally,  tliis  rule,  relating  to  documents  of  the  solemn 
and  formal  kind,  undertakes  to  secure  to  them  their  proper 
legal  operation  as  against  h^ss  formal  extrinsic  acts  and 
utterances  oi'  tlic  writer.  "Parol  contemporaneous  evi- 
dence," wc  are  told,  "is  inadmissible  to  contradict  or  vary 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.     513 

the  terms  of  a  valid  written  instrument."  ^  Now  so  crudely- 
conceived  and  so  ill-digested  is  the  mass  of  matter  under 
this  head,  which  every  day  and  many  times  a  day  our 
courts  are  called  on  to  interpret  and  apply,  that,  in  reality, 
vastly  the  greater  part  of  it,  almost  all  of  it,  has  no  proper 
place  in  the  law  of  evidence;  being  chiefly  made  up  of 
rules  in  the  substantive  law  of  documents,  such  as  wills 
and  contracts,  and  of  rules  of  construction  and  interpre- 
tation. What  is  the  result  of  this  ?  Utter  confusion  of 
thought,  and  frequent  injustice  in  decision.  Of  course 
when  in  reality  men  are  discussing  a  question  in  the  law 
of  partnership,  agency,  or  bankruptcy;  or  the  ground  and 
scope  of  equity  jurisdiction  in  dealing  with  fraud,  mis- 
take, trusts,  or  the  reforming  of  documents ;  or  the  rules 
for  the  construction  and  interpretation  of  language ;  and 
yet,  out  of  an  imagination  that  they  are  dealing  with  rules 
of  evidence,  go  on  to  clothe  their  ideas  in  the  phraseology 
of  that  subject;  although  a  right  result  may  be  reached, 
it  is  not  rightly  reached,  and  bewilderment  attends  the 
process.  There  is  a  question,  let  us  say,  of  reforming  a 
will  by  inserting  words  which  are  not  in  it.  The  decision 
is  disguised  by  saying  that  parol  evidence  is  not  admis- 
sible for  this  purpose ;  whereas,  if  the  purpose  were  legiti- 
mate the  evidence  would  be  good  enough.  There  is  a 
question  of  denying  operative  effect  to  a  contract  in  writ- 
ing which  has  been  signed,  is  in  the  hands  of  the  other 
party,  and  is  in  form  complete.  The  real  question  is, 
Have  you  a  legal  ground  of  action  or  defence  in  saying 
that  it  was  not  to  go  into  effect  till  the  happening  of  some 
event  which  has  not  happened,  and  was  not  named  in  the 
writing  ?  This  is  called  a  question  of  admitting  parol  or 
extrinsic  evidence.  There  is  a  question  of  whether  you 
can  set  up  the  defence  of  mistake  in  a  common-law  action, 
or  whether  you  must  go  into  equity.  That  is  called  a 
question  of  admitting  parol  evidence.  There  is  a  question 
of  whether  an  undisclosed  principal  can  sue  or  be  sued  on 

1  Greenl.  Evid.  i.  s.  275,  quoting  Phil.  &  Am.  Evid. 
33 


514  LAW  OF  EVIDENCE. 

a  written  contract  signed  only  by  bis  agent's  name;  or 
whether  you  can  avail  yourself  of  an  implied  warranty 
when  the  contract  of  sale  was  in  writing  and  says  nothing 
of  a  warranty.  These  are  called  questions  of  whether 
parol  evidence  is  admissible;  and  if  the  agreement  be 
under  seal,  the  doctrine  that  the  seal  of  the  agent  cannot 
bind  the  principal,  is  disguised  by  saying  that  parol  evi- 
dence is  not  admissible  to  make  the  principal  responsible. 
There  is  a  question,  in  case  of  a  misdescription  in  a  will, 
whether  a  given  person  may  take;  and  this  masquerades 
under  the  form  of  an  inquiry  whether  parol  evidence  is 
admissible  to  correct  the  mistake. 

This  error  is  deeply  ingrained  in  our  cases;  and  it  is  a 
subtle  one.  But  you  cannot  possibly  deal  thoroughly  and 
scientifically  with  this  part  of  our  law  until  the  error  is 
cast  out,  until  it  is  purged  of  that  mass  of  substantive 
law,  and  of  mere  rules  of  procedure,  and  reason,  and  logic 
which  overloads  it.  Tliere  was  a  time  when  all  that  was 
said  or  read  to  the  jury  was  spoken  of  as  said  en  evidence 
al  jury.  The  contrast- in  mind  when  this  was  said,  was 
between  saying  something  to  the  court,  in  pleading  (in  the 
days  of  oral  pleading),  and  saying  it  to  the  jury.  But  now, 
for  two  or  three  centuries,  we  have  been  discussing  the 
admissibility  of  what  is  offered  in  evidence,  under  a  new 
branch  of  law,  called  the  rules  of  evidence;  as  contrasted 
with  its  admissibility  under  the  law  of  pleading  and  prac- 
tice, and  the  substantive  law.  The  old  general  question  of 
admissibility  has  become  specialized.  If  it  was  said,  six 
centuries  ago,  that  you  could  or  could  not  say  a  thing  en 
euidence  al  jury,  it  was  becaiise  it  was  or  was  not  matter 
to  be  said  in  pleading  and  entered  on  the  record;  or  else 
because  it  was  or  was  not  logically  relevant  and  material 
to  tlie  issue  between  the  parties.  Nowadays  it  may  be 
exclu(l(!d  for  the  reason  that,  although  relevant  and  mate- 
rial to  the  issue,  and  not  at  all  matter  of  law;  although 
properly  addressed  to  the  jury  as  contrasted  with  the 
court,  yet  it  is  excluded  by  this  modern  sot  of  rules  called 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.      ol5 

the  law  of  evidence.  It  is  the  characteristic  of  these  rules 
to  shut  out  what  is  relevant;  not  all  that  is  relevant, 
happily,  but  some  things  that  are  relevant,  and  notwith- 
standing they  are  relevant.  There  are  many  reasons  for 
excluding  what  is  offered  in  evidence,  that  have  no  relation 
at  all  to  the  law  of  evidence.^  If  a  thing  be  excluded 
because  it  is  not  within  the  scope  of  the  general  issue,  it 
is  excluded  by  the  law  of  pleading;  if,  under  the  substan- 
tive law  of  the  case,  what  is  offered  has  nothing  to  do  with 
the  question,  then  it  is  the  substantive  law  of  the  case  that 
excludes ;  if  what  is  offered  has  no  logical  relation  to  the 
case,  then  it  is  the  rule  of  reason  that  rejects  it ;  or  a  party 
may  be  estopped  from  setting  up  what  he  offers  evidence 
to  prove.  But  when  matter  of  fact  bearing  on  the  issue  is 
excluded  for  none  of  these  reasons,  yet  lawfully,  it  is  the 
law  of  evidence  that  is  working;  as  when  the  question  is 
whether  you  may  offer  the  sworn  affidavit  of  a  trustworthy 
eye-witness,  not  personally  present  in  court,  or  a  testator's 
extrinsic  statement,  when  signing  his  will,  that  he  meant 
one  person  rather  than  another  of  similar  but  not  identical 
name ;  the  exclusion  in  such  cases  is  made  by  the  rules  of 
evidence;  what  is  offered  is  relevant  and  material,  but 
still  is  inadmissible. 

It  is  then  fundamental  that  not  all  determinations 
admitting  or  excluding  evidence  are  referable  to  the  law  of 
evidence.  Far  the  larger  part  of  them  are  not.  An  in- 
numerable company  of  questions,  of  the  sort  just  alluded 
to,  very  often  —  more  often  than  not,  nay,  much  oftener 
than  not  —  are  dealt  with  in  our  text -books  and  cases  as 
belonging  to  the  law  of  evidence,  when  in  real  truth  they 
ought  to  be  carried  to  the  border  line  of  this  subject  and 
respectfully  deposited  on  the  other  side.  Most  of  the 
affirmative  declarations  in  our  books  that  evidence  is 
admissible,  belong  to  this  class;  and  a  great  proportion  of 
those  which  hold  it  not  admissible.  As  regards  relevancy, 
in  determining  merely  what  is  logically  relevant  to  any 

1  Supra,  269. 


516  LAW  OF  EVIDENCE. 

point  and  what  is  relevant  according  to  the  standards  of 
general  experience,  it  is  not  the  law  that  guides  us; 
except,  indeed,  as  it  points  us  for  guidance  to  these  uni- 
versal standards,  already  known  or  ascertainable.  For  the 
law,  being  a  human  contrivance  and  outgrowth,  resting, 
as  if  by  gravity,  on  human  nature,  human  experience,  and 
the  principles  that  regulate  human  thought,  takes  all  these 
things  for  granted.  It  does  not  undertake  to  re-enact  them, 
still  less  to  displace  them  or  to  lift  itself  off  this  ground  by 
its  own  boot-straps.  To  impute  to  it  any  such  efforts  is  a 
suggestion  as  untrue  historically,  as  these  endeavors  would 
be  idle  and  superfluous  in  point  of  reason. 

There  is  another  great  class  of  cases,  germane  to  these 
just  mentioned,  but,  unlike  them,  really  belonging  to  the 
law  of  evidence,  where  the  decision  turns  on  the  just 
application  of  certain  large  and  inexact  principles,  — 
principles  that  may  be  likened  to  that  which  a  jury  has  to 
apply  in  determining  whether  conduct  in  certain  cases 
conforms  to  the  standard  of  the  prudent  man.  The  law 
of  evidence  undoubtedly  requires  that  evidence  to  a  jury 
shall  be  clearly  relevant,  and  not  merely  slightly  so;  it 
must  not  barely  afford  a  basis  for  conjecture,  but  for  real 
belief;  it  must  not  merely  be  remotely  relevant,  but  proxi- 
mately so.  Again,  it  must  not  unnecessarily  complicate 
the  case,  or  too  much  tend  to  confuse,  mislead,  or  tire  the 
minds  of  tliat  untrained  tribunal,  the  jury,  or  to  withdraw 
their  attention  too  mucli  from  the  real  issues  of  the  case. 
Now  in  the  ai)plication  of  such  standards  as  these,  the 
chief  appeal  is  made  to  sound  judgment;  to  what  our 
lawyers  have  called,  for  six  or  seven  centuries  at  least, 
the  discretion  of  the  judge.  Decisions  on  such  subjects 
are  not  readily  open  to  revision ;  and,  when  revised,  they 
have  to  be  judged  of  in  a  large  way;  this  is  expressed 
by  saying  that  the  question  is  whether  the  discretion  has 
been  unreasonably  exercised,  has  been  abused.  Doubt- 
less, in  some  classes  of  such  cases,  there  may  have  grown 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.  517 

up  a  sub-rule  which  limits  the  discretion.  In  such  cases, 
since  there  is  not  an  unfettered  discretion,  an  ordinary, 
additional  question  of  law  arises  as  to  the  application 
of  this  subsidiary  rule.  But,  in  general,  the  question  of 
law  is  not  of  the  ordinary  type,  because  it  ties  itself  to 
an  outside,  non-legal  standard,  namely,  that  of  good  sense, 
common  experience,  the  sound  judgment  of  men  of  affairs. 
When,  for  example,  on  a  question  of  negligence  in  driving 
a  horse  across  a  railroad,  you  offer  evidence  of  a  single 
instance  where  a  third  party  drove  safely  over,  at  another 
time,  under  like  conditions;  or,  in  another  case,  evidence 
of  ten  separate  instances  of  doing  this ;  and  in  both  cases 
it  is  rejected;  it  is  easy  to  see  that  a  revising  court  might 
properly  enough  sustain  both  rejections,  while  themselves 
disapproving  of  both ;  —  sustaining  and  yet  disapproving  of 
the  first,  because  the  evidence  was  slight  and  conjectural, 
and  yet  might  be  thought  by  a  trial  judge  sufficiently 
relevant  and  helpful;  and  the  second,  because,  while  it 
seemed,  in  point  of  quality,  fairly  clear  and  strong  and 
probative,  it  tended,  nevertheless,  to  confuse  the  case  by 
its  multiplication  of  instances;  and  because  there  were 
other  simpler  ways  of  proof  open  to  the  party,  such  as  the 
opinion  of  experienced  observers,  or  a  view  by  the  judge 
or  jury. 

In  such  cases  it  is  a  question  of  where  lies  the  balance 
of  practical  advantage.  To  discuss  such  questions,  as  is 
sometimes  done,  on  the  bare  ground  of  relevancy,  — even 
if  we  introduce  the  poor  notion  of  legal  relevancy,  as  con- 
trasted with  logical  relevancy,  —  tends  to  obscure  the 
nature  of  the  inquiry.  There  is,  in  truth,  generally,  no 
rule  of  law  to  apply  in  answering  such  questions  as 
whether  the  evidence,  although  probative,  is  too  slight, 
conjectural,  or  remote;  or  whether  it  will  take  too  much 
time  in  the  presenting  of  it,  in  view  of  other  practicable 
ways  of  handling  the  case;  or  whether  it  will  complicate 
and  confuse  the  case  too  much.  There  is  no  rule  and  no 
principle  which  forbids  delay,  tediousness,  and  complica- 


518  LAW   OF  EVIDENCE. 

tion,  pure  and  simple,  and  always;  what  is  forbidden  is 
unnecessary  complication,  delay,  and  tediousness.  These 
things  are  discouraged;  but  often  they  are  unavoidable. 
When  the  nature  of  the  issue  requires  it,  enormous  dangers 
of  this  sort  have  to  be  run.  Consider  the  Tichborne  case, 
the  Tilton  v.  Beecher  case,  the  Guiteau  case,  and  the  great 
will  case  of  Wright  v.  Tatham  which  turned  up  so  often 
in  the  English  books  sixty  years  ago;  or  consider  any 
hard-fought  case  raising  the  question  of  insanity.  In 
such  controversies  a  range  of  inquiry  is  allowed  of  almost 
indefinite  width,  one  which  covers  the  behavior  of  a  party 
during  his  whole  life,  and  even  travels  over  into  that  of 
all  his  near  relations. 

In  this  region  of  the  law  of  evidence  much  confusion 
results  from  an  inexact  apprehension  of  the  nature  of  the 
questions,  and  of  the  appropriate  method  of  handling  them 
on  appeal.  Often  it  is  not  perceived  that  what  appears  to 
be  a  mistaken  determination  of  such  points  at  the  trial, 
is  simply  a  more  or  less  important  mistake  in  practical 
judgment,  and  not  at  all  a  mistake  in  law.  Judges,  and 
whole  benches  of  them,  may  decide  such  questions  differ- 
ently, while  perfectly  agreeing  on  the  rule  of  law  and 
keeping  within  it. 

There  is  a  great  head  of  the  law  of  evidence,  compris- 
ing, indeed,  with  its  exceptions,  much  the  largest  part  of 
all  that  truly  belongs  there,  forbidding  the  introduction  of 
hearsay.  The  true  iiistorical  nature  of  this  rule  is  hinted 
by  the  remark  of  an  English  court,  two  centuries  ago  and 
over,  when  they  checked  the  attempt  of  a  woman  to  testify 
wliat  another  woman  had  told  her.  "The  court,"  it  was 
(piietly  remarked,  "are  of  opinion  that  it  will  be  proper  for 
Wells  to  give  her  own  evidence."^  That  is  to  say,  the 
objection  went  to  the  medium  of  connnunication ;  witnesses 
before  the  jury,  in  giving  oidinary  testimony,  had  by  that 
time  been  iillowcd  for  some  tlirce  centuries;  but  it  must  be 
1   Eli/..  (':iniiiiif''s  case,  19  St.  Tr.  38.3,  406. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.   519 

un  oyant  et  veyant^  a  hearer  and  seer,  as  they  said  in  the 
older  Year  Books ;  one  who  could  say,  as  the  witnesses  to 
courts  in  older  times  always  had  to  say,  quod  v'ldi  et  audivi  ; 
it  must  not  be  testimony  at  second  hand.  When  juries, 
who  were  themselves,  originally,  witnesses  as  well  as 
triers,  came  to  be  helped  regularly  by  the  testimony  of 
other  witnesses,  it  was  only  by  such  as  personally  knew 
the  truth  of  what  they  were  saying,  and  not  by  witnesses 
who  only  knew  what  some  one  else  had  said  to  them. 
Juries,  indeed,  could  say  what  they  "knew;"  but  wit- 
nesses to  juries  could  only  say  what  they  had  seen  and 
heard.  In  the  first  half  of  the  fourteenth  century  we  find 
the  judges  laying  this  down  as  applicable  in  the  instance 
of  attesting  witnesses.  What  it  meant  was  that  while 
juries  could  form  opinions  from  anything  they  knew,  the 
verdict  being  given  at  their  peril;  while  they  might  act  on 
what  they  had  picked  up  in  any  way,  and  on  such  founda- 
tions might  form  a  judgment  which  would  count  as  knowl- 
edge; yet  witnesses  could  not  do  this,  or  rather  were  not  to 
state  it  if  they  did;  were  not  to  say  what  they  "thought," 
or  "believed,"  or  had  heard  from  others,  or  had  inferred 
from  what  we  now  call  circumstantial  evidence.  This  con- 
trast between  the  function  of  the  jury  and  that  of  witnesses, 
which  made  it  necessary  to  discriminate  and  define  these 
points  five  or  six  hundred  years  ago,  as  regards  the  preap- 
pointed witnesses  who  went  out  with  the  jury,  —  even 
before  witnesses  were  ordinarily  allowed  to  testify  to 
juries,  —  has  led  to  a  steady  and  rigid  adherence  to  the 
general  doctrine  of  hearsay  prohibition. 

But  there  came  a  large  and  miscellaneous  number  of 
so-called  "exceptions."  Some  of  these,  in  reality,  were 
quite  independent  rules,  whose  operation  was  rather  that 
of  qualifications  and  abatements  to  the  generality  of  this 
other  doctrine;  rules  which  were  coeval  with  the  doctrine 
itself  or  much  older.  For  example,  it  seems  always  to 
have  been  true,  in  cases  of  homicide,  that  the  dying  decla- 
rations of  persons  killed  were  reported  and   acted  on  in 


520  LAW   OF  EVIDENCE. 

judicial  proceedings.  We  find  these  used  by  a  complaint 
"witness  as  far  back  as  1202,^  and  used  in  evidence  to  the 
jury  in  1721.^  Such  declarations  in  early  times,  and  even 
in  late  times,  had  a  jDeculiar  credit  allowed  them.  So,  in 
tracing  pedigree,  the  family  hearsay  seems  always  to  have 
been  resorted  to.  This  matter,  before  jury  trial  was 
developed,  used  to  be  "  tried  "  by  witnesses,  who  stated  cir- 
cumstantially how  they  knew  what  they  said;^  and  hear- 
say from  the  family,  if  confirmed  by  circumstances,  was, 
probably,  always  a  basis  for  their  testimony.  Family 
hearsay  had  the  aspect  of  family  reputation;  and  reputa- 
tion was  often  reckoned  an  adequate  ground  for  judicial 
action.  In  the  thirteenth  century  we  find  a  witness,  in 
proving  another  person's  age,  giving  as  the  basis  of  his 
testimony  tlie  fact  of  the  mother's  recording  the  age  in  the 
records  of  a  Priory,  which  record  he  had  seen.*  In  matters 
affecting  a  whole  parish  or  a  large  number  of  persons,  the 
hearsay  and  reputation  of  those  belonging  in  the  given 
community  was  always  regarded  as  good. 

There  was  another  class  of  unsworn  statements  which 
had  always  been  resorted  to  in  judicial  proceedings  and 
admitted  to  tlie  jury,  namely,  written  ones,  —  entries  in 
registers,  in  a  parson's  books,  in  the  account  books  of 
stewards,  in  a  merchant's  books,  in  contracts,  deeds,  wills, 
and  other  documents.  Documents  had  always  been  shown 
to  juries,  —  long  before  witnesses  were  received  to  testify 
to  them.  In  the  early  days  they  did  not  stick,  it  would 
seem,  at  showing  the  jiiry  any  document  that  bore  on  the 
case,  without  even  thinking  of  how  the  writer  knew  what 
he  said.  As  regards  ancient  matters,  writings  very  imper- 
fectly aTithenticated  were  one  of  the  chief  sources  of  infor- 
mation, and  often  the  only  one.     It  appears,  then,  that  a 

1  1  Seld.  Soc.  1 1  ;  and  see,  wliat  looks  to  1)C  about  a  quarter  of  a  cen- 
tury later,  another  case  in  I'l.  Ah.  104. 

2  R.  y.  Trantor,  1  Stranfijc,  499. 
8  Supra,  19-21. 

1  I'!.  A!..  '29:i,  c.il.  1. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.  521 

number  of  the  so-called  "  exceptions  "  to  the  hearsay  pro- 
hibition came  in  under  the  head  of  written  entries  or 
declarations;  they  came  in,  or  rather,  so  to  speak,  stayed 
in,  simply  because  they  had  always  been  received,  and  no 
rule  against  hearsay  had  ever  been  formulated  or  inter- 
preted as  applying  to  them.  Such  things,  continuing  at 
the  present  day,  are,  e.  ^.,  the  admission  of  old  entries  and 
writings  in  proof  of  ancient  matters,  written  declarations 
of  deceased  persons  against  interest,  and  in  the  course  of 
duty  or  business;  and,  to  a  limited  extent,  a  merchant's 
own  account  books  to  prove  his  own  case,  — a  thing  clearly 
recognized  as  customary  and  allowable  in  an  English 
statute  of  1609,  nearly  three  centuries  ago,^  but  insensibly, 
and  often  ignorantly,  much  qualified  afterwards.  So  also 
of  regular  entries  in  public  books,  a  matter  probably  never 
even  doubted  to  be  admissible  in  evidence. 

In  addition  to  all  these  ancient  and  always  approved 
practices  in  their  simple,  original  shape,  operating  as 
qualifications  of  the  hearsay  prohibition,  there  have  come 
in  many  extensions  of  them ;  as  when  oral  declarations  of 
deceased  persons  against  interest  were  received,  and,  in 
England,  even  oral  declarations  of  deceased  persons  in  the 
course  of  duty  of  business.  And  not  only  has  the  scope  of 
these  old  titles  been  enlarged,  but  new  exceptions  have 
been  made ;  or  perhaps  they  are  rather  old  ones  coming  to 
be  recognized  and  formulated;  such  as  those  relating  to 
the  res  gesta,  i.  e.,  declarations  which  are  a  part  of  some 
fact  itself  admissible,  and  declarations  of  present  intention 
or  present  physical  sensation.  Such  things  are  the  natural 
development  of  the  subject. 

Now  a  great  deal  of  perplexity  exists,  in  the  law  relat- 
ing to  hearsay,  from  a  failure  to  understand  the  scope  of 
these  exceptions;  and  from  an  uncertainty  whether  and 
how  far  they  are  to  be  freely  developed,  or  to  be  strictly 
limited,  as  being  mere  exceptions,  while  the  main  rule 
itself  which  prohibits  hearsay  is  expanded.  Sometimes 
1  St.  7  Jac.  I.  c.  12. 


•'^22  LAW   OF   EVIDENCE. 

one  thing  is  done  and  sometimes  the  other.  In  a  leading 
case  in  the  House  of  Lords,  in  1880,  Lord  Blackburn,  in 
discussing  a  question  of  hearsay  and  rejecting  the  evi- 
dence, said :  "  I  base  my  judgment  upon  this,  that  no  case 
has  gone  so  far  as  to  say  that  such  a  document  could  be 
received;  and  clearly,  unless  it  is  to  be  brought  within 
some  one  of  the  exceptions,  it  would  fall  within  the  general 
rule  that  hearsay  evidence  is  not  admissible."^  On  the 
other  hand.  Sir  George  Jessel,  in  a  very  different  tone,  in 
1876,  had  declared  it  to  be  the  court's  duty  to  extend  the 
exceptions  to  the  hearsay  rule,  out  of  "regard  to  the 
reasons  and  principles  which  have  induced  the  tribunals  of 
this  country  to  admit  exceptions  in  the  other  cases.  "^  It 
seems  a  sound  general  principle  to  say  that  in  all  cases  a 
main  rule  is  to  have  extension,  rather  than  exceptions  to 
the  rule;  that  exceptions  should  be  applied  only  within 
strict  bounds,  and  that  the  main  rule  should  apply  in  cases 
not  clearly  within  the  exception.  But  then  comes  the 
question,  wha.t  is  the  rule,  and  what  the  exceptions  ? 
There  lies  a  difficulty.  A  true  analysis  would  probably 
restate  the  law  so  as  to  make  what  we  call  the  hearsay 
rule  the  exception,  and  make  our  main  rule  this,  namely, 
that  whatsoever  is  relevant  is  admissible.  To  any  such 
main  rule  there  would,  of  course,  be  exceptions;  but  as  in 
the  case  of  other  exceptions,  so  in  the  hearsay  prohibition, 
this  classification  would  lead  to  a  restricted  application  of 
them,  while  the  main  rule  wo\ild  have  freer  course.  One 
mischief  about  the  present  state  of  our  law  is  that  it  shows 
a  spasmodic  and  half-recognized  acceptance  of  such  a 
theory  in  particular  instances,  while  rejecting  it  generally. 
For  example,  there  is,  sometimes,  a  tendency  to  regard  a 
hearsay  statement  as  admissible  if  it  be  one  of  a  set  of 
facts  giving  and  reflecting  credit,  each  to  the  other,  — on 
the  principle  of  what  is  called  circumstantial  evidence. 
This  brings  in  confusion,  for  our  law  really  goes  but  a  very 

1  Stnrlii  ('.  Frcccia,  5  App.  Cas.  02.'?. 

2  Sii^;ilcii  r.  St.  l.eoiiiiid.s,  1   Piol).  Div.  1  .'')4. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.   523 

little  way  in  that  direction.  No  doubt,  in  point  of  reason, 
hearsay  statements  often  derive  much  credit  from  the  cir- 
cumstances under  which  they  are  made;  say,  e.g.,  from 
the  fact  of  being  made  under  oath,  or  under  impressive 
conditions,  as  being  against  interest,  or  made  under  strong 
inducements  to  say  the  contrary,  or  as  part  of  a  series  of 
statements  or  a  class  of  them  which  are  usually  careful  and 
accurate,  and  the  like;  credit  amply  enough  in  point  of 
reason  to  entitle  them  to  be  received  as  evidence,  when 
once  the  absence  of  the  perceiving  witness  is  accounted 
for;  and  it  would  in  reason  have  been  quite  possible  to 
shape  our  law  in  the  form  that  hearsay  was  admissible,  as 
secondary  evidence,  whenever  the  circumstances  of  the 
case  alone  were  enough  to  entitle  it  to  credit,  irrespective 
of  any  credit  reposed  in  the  speaker.  This  point  of  view 
is  forever  suggesting  itself  in  that  part  of  the  subject 
relating  to  declarations  which  are  a  part  of  some  admissible 
fact,  —  of  the  res  gesta,  as  the  phrase  is.  These  are  often 
spoken  of  as  parts  of  a  mass  of  circumstantial  facts  de- 
scribed as  o^es  gestcB,  all  evidential,  supporting  and 'sup- 
ported by  each  other  in  their  tendency  to  prove  some 
principal  fact;  instead  of  being  regarded,  as  they  should 
be,  as  parts  of  that  fact  itself,  ^;»ars  rei  gesta-,  lying  under 
the  curse  of  hearsay,  but  received,  by  way  of  exception, 
on  account  of  this  special  intimacy  of  connection  with  the 
admissible  fact.  This  part  of  the  subject  presents  an 
instructive  spectacle  of  confusion,  resulting  from  the  desire, 
on  the  one  hand,  to  hold  to  the  just  historical  theory  of 
our  cases;  and,  on  the  other,  to  resort  to  first  principles, 
without  being  aware  of  the  size  and  complexity  of  the  task 
which  is  thus  unconsciously  entered  upon. 

I  need  not  linger  long  on  the  two  or  three  other  chief 
topics  in  the  law  of  evidence.  The  rules,  roughly  thus 
intimated,  which  forbid  the  giving  of  opinion  evidence  and 
of  character  evidence  are  leading  and  important.  As  to 
the  former  it  is  traceable  easily  to  the  same  source  as  the 


524  LAW   OF   EVIDENCE. 

hearsay  rule.  It  was  for  the  jury  to  form  opinions,  and 
draw  inferences  and  conclusions,  and  not  for  the  witness. 
He  was  merely  to  bring  in  to  the  jury,  or  the  judge,  the 
raw  material  of  fact,  on  which  their  minds  were  to  work. 
If  the  witness  spoke  directly  to  the  very  fact  in  issue,  the 
jury  were  to  consider  whether  to  believe  his  statements  or 
not;  if  to  other  facts,  of  an  evidential  sort,  then  the  jury 
were  to  judge  of  their  import  and  their  tendency.  The 
witness  was  not  to  say  that  he  "thought"  or  "believed" 
so  and  so;  it  was  for  the  jury  to  say  Avhat  they  thought 
and  believed.  The  witness  must  say  what  he  had  "seen 
and  heard;"  he  was  an  "oijayit  et  veant.^'  But  then, 
simple  as  this  sounds,  the  distinction  could  not  serve  in 
many  nice  and  critical  inquiries.  In  the  loose  and  easy 
administration  of  the  law  of  trials  that  existed  as  long  as 
juries  went  on  their  own  knowledge,  and  needed  no  wit- 
nesses or  evidence  at  all,  and  at  a  time  when,  even  if  they 
had  witnesses,  they  were  at  liberty  to  disregard  them  and 
to  follow  their  own  personal  information,  it  was  possible 
to  get  along  without  nice  discriminations;  so  that  the  law 
of  evidence  had  hardly  any  development  at  all  until  within 
the  last  two  centuries;  and  it  was  but  slight  before  the 
present  century.  In  a  sense  all  testimony  to  matter  of  fact 
is  opinion  evidence;  i.  e.,  it  is  a  conclusion  formed  from 
phenomena  and  mental  impressions.  Yet  that  is  not  the 
way  we  talk  in  courts  or  in  common  life.  Where  shall 
the  line  be  drawn  ?  When  does  matter  of  fact  first  become 
matter  of  opinion  ?  A  difficult  question;  but  some  things 
are  clear.  There  are  questions  which  require  special 
training  and  knowledge  to  answer  them.  A  jury,  unless 
it  be  one  of  experts,  and,  as  such,  ill  adapted,  perhaps,  for 
the  general  purposes  of  trials,  cannot  deal  with  them.  On 
such  questions,  then,  tlie  ordinary  jury  may  be  assisted  by 
skilled  witnesses,  who  give  their  opinions.  There  are 
otlier  questions,  not  requiring  skill  or  training,  but  only 
special  0])portunities  of  observation,  like  liandwriting  and 
the    value    oC    jiroporty,    on    which    opinions    of    ordinary 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.   525 

witnesses  having  such  opportunities  may  be  given.  How 
far  does  this  go  ?  There  is  much  apparent  perplexity  in 
the  cases.  In  a  very  great  degree  it  results  from  differ- 
ences of  practical  judgment  in  applying  an  admitted  rule, 
—  the  admitted  rule  being  that  opinion  evidence  is  not 
generally  receivable,  and  the  difference  arising  from  differ- 
ing judgments  as  to  what  is  and  is  not  really  to  be  called 
opinion  evidence  in  the  sense  of  the  rule.  It  has  been 
said,  judicially,  that  "there  is,  in  truth,  no  general  rule 
requiring  the  rejection  of  opinions  as  evidence."^  With- 
out acceding  quite  literally  to  that,  there  is  ground  for 
saying  that,  in  the  main,  any  rule  excluding  opinion 
evidence  is  limited  to  cases  where,  in  the  judgment  of  the 
court,  it  will  not  be  helpful  to  the  jury.  Whether  accepted 
in  terms  or  not,  this  view  largely  governs  the  adminis- 
tration of  the  rule.  It  is  obvious  that  such  a  principle 
must  allow  a  very  great  range  of  permissible  difference  in 
judgment;  and  that  conclusions  of  that  character  ought 
not,  usually,  to  be  regarded  as  subject  to  review  by  higher 
courts.  Unluckily  the  matter  is  often  treated  by  the 
courts  with  much  too  heavy  a  hand;  and  the  quantity  of 
decisions  on  the  subject  is  most  unreasonably  swollen. 

The  rule  excluding  character  evidence,  when  exactly 
stated,  merely  forbids  the  use  of  a  person's  general  repu- 
tation or  actual  character,  as  a  basis  of  inference  to  his 
own  conduct.  For  other  purposes  it  is  often  received, 
e.  f/.,  as  tending  to  prove  that  a  fellow-servant's  defects 
were  known  to  his  employer.  This  rule  is  modern.  In 
earlier  times  such  evidence  was  freely  used  in  our  courts, 
as  it  still  is  in  other  than  English-speaking  countries. 
Undoubtedly,  as  a  mere  matter  of  reason,  it  often  affords 
a  good  basis  of  inference;  and,  on  the  other  hand,  often, 
besides  tending  to  surprise  a  man,  and  to  subject  him  to 
the  operation  of  prejudice  and  malice,  it  is  quite  too  con- 
jectural and  too  slight  to  be  safely  used,  and  so  comes 
within   the   condemnation  of   a  general  principle  already 

mentioned. 

1  Hardy  v.  Merrill,  56  N.  H.  227,  241. 


526  LAW   OF  EVIDENCE. 

On  the  rules  regulating  the  examination  of  witnesses 
I  will  not  dwell.  They  are  full  of  sense,  and  are  few, 
simple,  and  easily  understood;  although,  like  all  rules  for 
strenuous  competitive  struggles,  nothing  but  practice  and 
the  observation  of  practice  can  bring  them  to  a  man's 
fingers'  ends,  or  keep  them  there.  Fortunately  they  allow 
much  more  discretion  to  the  judges  in  administering  them 
than  is  found  in  most  of  the  rules  of  evidence.  As  to 
rules  for  the  exclusion  of  witnesses,  they  have  nearly  dis- 
appeared. Little  remains  except  what  reason  requires, 
namely,  the  exclusion  of  persons  too  young  to  be  trusted, 
or  too  deficient  in  intelligence. 

Finally,  there  are  rules  relating  to  documents,  —  as  to 
the  proof  of  their  contents,  of  their  execution,  and  of 
alterations  in  them.  Of  these  a  word  or  two  should  be 
said.  He  who  would  prove  the  contents  of  a  writing  must 
produce  it  bodily  to  the  tribunal;  if  it  is  lost  or  destroyed, 
otherwise  than  by  evil  contrivance  of  the  party  offering  the 
evidence,  then  the  contents  may  be  proved  by  copy  or 
orally.  This  rule,  if  wisely  applied,  is  one  of  peculiar 
good  sense,  but  there  is  discordance  as  to  the  scope  of  it, 
and  as  to  what  may  excuse  one  from  the  application  of  it. 
It  is  obscurely  connected  with  the  old  law  of  profert, 
which  required  the  physical  production  in  court,  in  the 
course  of  pleading,  of  any  document  which  was  the  basis 
of  action  or  defence. 

As  regards  the  proof  of  execution  where  the  document 
is  attested,  the  rule  runs  back  to  the  most  ancient  periods 
of  our  law.  The  document  witnesses  were  formerly  sum- 
moned with  tlie  jury,  and  joined  in  their  secret  delibera- 
tions.^ This  was  done  until  about  four  centuries  ago,  and 
perhaps  later.  From  these  older  ])eri()(ls  there  survived  a 
rigor  of  requirement  as  to  summoning  the  attesting  wit- 
nesses, and  a  precedence  in  that  method  of  proving  the 
execution  over  all  others,  wliich  have  long  been  irrational; 
the    law    is    still    encumbered    with    many    troublesome 

^  iSiijira,  97. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.      527 

remnants   of   the   old    doctrine   and    many    ill-instructed 
decisions. 

As  regards  the  proof  of  alterations  in  documents  the 
cases  are  full  of  confusion.  Fragments  of  substantive  law 
embarrass  the  rules  of  evidence  relating  to  this  subject; 
and  it  is  further  intolerably  perplexed  by  a  quantity  of 
jargon  about  presumptions  and  the  burden  of  proof  which 
often  conceals  the  lack  of  any  clear  ap})rehension  of  the 
subject  on  the  part  of  those  who  use  it,  and  often  disguises 
the  true  character  of  sound  decisions. 

Such  is  a  rough  outline  of  the  chief  parts  of  our  law  of 
evidence.  Speaking  exactly,  this  part  of  the  law  deals 
merely  with  the  business  of  furnishing  to  the  tribunal  such 
information  as  to  matters  of  fact  in  issue  as  is  needed  in 
order  to  decide  the  dispute,  or  to  take  any  desired  action. 
It  assumes  a  properly  qualified  tribunal,  one  that  knows 
an  evidential  thing  when  it  sees  it.  It  does  not  re-enact, 
nor  does  it  displace,  the  main  rules  which  govern  human 
thought.  These  are  all  taken  for  granted.  But  it  does 
exclude,  by  rules,  much  which  is  logically  probative.  It 
also  regulates  the  production  of  witnesses,  documents,  and 
visible  objects  offered  for  inspection  as  the  basis  of 
inference. 

The  chief  defects  in  this  body  of  law,  as  it  now  stands, 
are  that  motley  and  undiscriminated  character  of  its  con- 
tents which  has  been  already  commented  on;  the  ambiguity 
of  its  terminology;  the  multiplicity  and  rigor  of  its  rules 
and  exceptions  to  rules;  the  difficulty  of  grasping  these 
and  perceiving  their  true  place  and  relation  in  the  system, 
and  of  determining,  in  the  decision  of  new  questions, 
whether  to  give  scope  and  extension  to  the  rational  prin- 
ciples that  lie  at  the  bottom  of  all  modern  theories  of 
evidence,  or  to  those  checks  and  qualifications  of  these 
principles  which  have  grown  out  of  the  machinery  through 
which  our  system  is  applied,  namely,  the  jury.  These 
defects   discourage  and  make   difficult   any  thorough  and 


528  LAW   OF   EVIDENCE. 

scientific  knowledge  of  this  part  of  tlie  law  and  its  pecu- 
liarities. Strange  to  say,  such  a  knowledge  is  very  unusual, 
even  among  the  judges. 

The  actual  administration  of  this  system  is,  indeed, 
often  marked  by  extraordinary  sagacity  and  good  sense, 
particularly  in  England.  In  that  country  it  is  uncommon 
to  carry  questions  of  evidence  to  the  upper  courts.  In 
England  the  influence  of  the  judge  at  nisi  2J^'ius  goes  to 
check  controversy  over  points  of  evidence  far  more  than 
here,  and  the  relations  between  bench  and  bar  make  this 
influence  generally  effectual.^  Moreover,  owing  to  that 
great  and  just  confidence  in  the  capacity  of  the  judges 
which  is  felt  in  England,  they  are  able  to  exercise  a  benefi- 
cent control  over  the  subject  through  their  extensive 
power  of  making  rules. ^ 

In  our  own  administration  of  the  law  of  evidence  too 
many  abuses  are  allowed,  and  the  power  of  the  courts  is 
far  too  little  exercised  in  controlling  the  eager  lawyer  in 
his  endeavors  to  press  to  an  extreme  the  application  of  the 
rules.  Sharply  and  technically  used,  these  rules  enable  a 
man  to  go  far  in  worrying  an  inexperienced  or  ill-prepared 
adversary,  and  in  supporting  a  worthless  case.  Our  prac- 
tice, which  shows  so  little  of  the  sensible  moderation  of 
the  English  barrister,  and  so  little  of  the  vigorous  control 
of  the  English  judge,  in  handling  evidence  at  the   trial, 

1  It  surprises  English  lawyers  to  see  our  lively  quarrels  over  points  of 
evidence.  One  of  them  writing  from  New  York  to  the  "  Loudon  Times," 
some  years  ago,  spoke  of  being  present  at  the  trial  of  a  cflse  of  trespass 
to  land  between  two  farmers.  It  involved  questions  of  old  boundaries. 
"  The  nature  of  the  case,"  lie  said,  "  made  it  inevitable  that  many  ques- 
tions of  evidence  sliould  be  raised.  But  never,  not  even  in  a  ])edigree 
ea.se,  or  an  indictment  for  not  repairing  a  road,  did  I  see  so  many  objec- 
tions to  the  rccei)tii)n  of  evidence  taken  ;  and  I  am  inclined  to  think  tliat 
jiointsof  evidence  are  discussed  far  more  frequently  than  is  now  the  case 
witli  us."  The  observation  of  any  one  who  lias  watched  trials  in  tlie  Eng- 
lish courts  will  cnipliaticaJly  confirm  tliese  impressions. 

2  See  Wilson's  .Judicature  Acts,  7t,h  ed.  (1888),  passim;  and  see  com- 
ments in  Harvard  Law  Koview,  viii.  224,  on  Order  XXX.,  Rule  7,  pro- 
mulgated in  August,  1894. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.      529 

operates  in  another  way  to  injure  the  rules  of  evidence. 
Here  questions  of  this  sort  are  generally  taken  up  on 
exceptions,  a  method,  never  common  in  England  and 
now  abolished  there,  which  presents  only  a  dry  question 
of  law,  — not  leaving  to  the  upper  court  that  power  to  heed 
the  general  justice  of  the  case  which  the  more  elastic 
procedure  of  tlie  English  courts  so  commonly  allows;  and 
tending  thus  to  foster  delay  and  chicane. 

In  neither  country  is  the  system  of  evidence  consistently 
administered.  Wherever  evidence  is  taken  by  commission 
or  deposition,  the  rules  of  exclusion  largely  break  down; 
that  is  to  say,  in  a  great  proportion  of  trials  where  there 
is  no  jury,  namely,  in  equity,  patent,  and  admiralty  cases, 
and,  more  or  less,  in  jury  cases  at  the  common  law.  In 
such  cases  the  magistrate  who  takes  the  evidence  notes 
any  objection  that  is  made,  but  does  not  and  cannot  omit 
to  set  down  the  evidence  actually  given.  There  it  stands, 
and  it  is  handed  up  to  the  court  or  jury,  and  is  found  on 
the  paper  with  all  the  rest  of  the  evidence.  In  most 
instances  there  is  small  profit  in  fighting  over  the  admissi- 
bility of  evidence  which  is.  already  in,  and  has  once  been 
read  by  or  to  the  tribunal;  under  such  circumstances  the 
whole  doctrine  of  the  exclusion  of  evidence  is  in  a  great 
degree  inoperative. 

II.  So  much  for  the  system  of  evidence  which  we  have. 
Let  me  come  to  the  second  question:  What  should  we 
have,  and  how  may  we  get  it  ? 

We  should  have  a  system  of  evidence  simple,  aiming 
straight  at  the  substance  of  justice,  not  nice  or  refined  in 
its  details,  not  too  rigid,  easily  grasped  and  easily  applied. 
All  this  is  necessary,  because  it  is  for  use  in  the  midst  of 
the  eager  competition  of  trials,  where  time  is  short  and 
decisions  must  be  quickly  made.  Long  discussion,  and 
delay  for  reflection,  are  impracticable;  and  in  a  secondary 
and  incidental  part  of  the  law,  like  evidence,  however 
important  it  be,  — and  it  is  very  important,  for  the  putting 

34 


530  LAW  OF   EVIDENCE. 

in  or  keeping  out  of  evidence  means  often  the  difference 
between  gaining  your  case  or  losing  it,  —  decisions  in  the 
lower  court  should  generally  be  final. 

In  the  pressure  of  actual  trials,  where,  often,  the  in- 
terests and  passions  of  men  are  deeply  stirred  and  all  the 
resources  of  chicane  are  called  into  play  and  directed  by 
great  abilities  to  obstruct  the  movements  of  justice,  —  the 
rules  of  evidence  and  procedure  ought  to  be  in  a  shape  to 
second  promptly  the  authority  of  the  courts  in  checking 
these  familiar  efforts.  In  the  rulings  of  judges  at  the  trial 
much  depends  on  momentary  and  fleeting  considerations, 
addressed  to  the  practical  sense  and  discretion  of  the  court, 
and  not  well  admitting  of  revision  on  appeal.  There  are 
many  things  in  which  even  now  the  discretion  of  the 
courts  goes  far.  A  thousand  important  matters,  of  one 
sort  and  another,  are  finally  disposed  of  at  the  trial,  — 
without  the  right  of  appeal.  The  all-important  decision 
of  the  jury  itself  is  final,  except  as  the  court,  for  a  few 
reasons,  may  set  it  aside,  e.  g.,  as  being  irrational  or 
against  evidence.  In  like  manner,  in  the  whole  of  the 
secondary  and  adjective  part  of  the  law  there  should  be 
little  opportunity  to  go  back  upon  the  rulings  of  the  trial 
judge;  there  should  be  an  abuse,  in  order  to  justify  a 
review  of  them  by  an  appellate  court.  In  order  to  make 
this  practicable,  the  rules-of  evidence  should  be  simplified; 
and  should  take  on  the  general  character  of  principles,  to 
guide  the  sound  judgment  of  the  judge,  rather  than  minute 
rules  to  bind  it.  The  two  leading  principles  should  be 
brought  into  conspicuous  relief,  (1)  that  nothing  is  to  be 
received  which  is  not  logically  probative  of  some  matter 
requiring  to  be  proved;  and  (2)  that  everything  which  is 
thus  probative  should  come  in,  unless  a  clear  ground  of 
])olicy  or  law  excludes  it.  And  then,  as  regards  the  mass 
of  detailed  rules,  these  should  mainly  be  subject  at  all 
times  to  the  shaping  and  controlling  power  of  the  high- 
<!St  courts,  in  the  different  jurisdictions,  in  making  rules 
of   court.     The   rules   of   evidence   on  which  we  practise 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.  531 

to-day  have  mostly  grown  up  at  the  hands  of  the  judges; 
and,  except  as  they  be  really  something  more  than  rules  of 
evidence,  they  may,  in  the  main,  properly  enough  be  left 
to  them  to  be  modified  and  reshaped. 

But,  in  doing  this,  let  me  hasten  to  say,  it  would  be 
necessary  at  the  outset  to  discriminate  between  what  are 
really  rules  of  evidence,  and  what  are  only  nominally  such. 
It  would  never  do  to  submit  to  the  free  control  of  the 
judges,  through  rules  of  court,  the  great  mass  of  substan- 
tive law  that  now  lies  disguised  under  the  name  of  the 
law  of  evidence.  It  is,  indeed,  on  every  ground,  high 
time  that  this  separation  were  made.  It  is  discreditable 
to  a  learned  profession  to  allow  the  subject  to  lie  in  the 
jumble  that  now  characterizes  it  in  this  respect.  To  do 
this  will  tend  wonderfully  to  simplify  and  clear  the  subject 
of  evidence  as  we  now  have  it;  and  it  will  also  remove  a 
chief  objection  to  certain  needed  reforms,  and  especialh'  to 
this  of  placing  in  the  hands  of  the  judges  a  far  larger 
discretion  in  shaping  and  modifying  the  system  than  is 
now  allowed  them.  This,  then,  is  the  first  step  to  be 
taken;  it  is  necessary  in  any  event,  if  we  are  to  have  clear 
ideas  on  the  subject;  and  it  is  practicable  if  undertaken 
by  competent  hands. 

When  once  this  extrusion  of  foreign  matter  is  accom- 
plished, the  process  of  simplifying  and  restating  the  rules 
of  evidence,  in  the  proper  sense  of  the  word,  can  go  for- 
ward. To  accomplish  this,  some  legislation  would  prob- 
ably be  necessary.  It  should  take  the  shape  of  conferring 
authority  on  the  courts,  or  expressly  recognizing  it  as 
already  in  them,  to  change  and  mould  the  rules  of  evidence, 
subject  to  such  limitations  as  may  seem  prudent,  —  subject 
only,  it  might  be  hoped,  to  a  few  large  and  simple  prin- 
ciples which  are  the  skeleton  of  our  present  system.  We 
can  hardly  hope  for  wisdom  enough  in  the  legislature  to 
accomplish  in  any  other  way  what  is  needed.  Good  legis- 
lation of  any  sort,  in  the  way  of  law  reform,  is  very  hard, 
almost   impossible,    to   get.     Yet   a  small  and   instructed 


532  LAW  OF  EVIDENCE. 

body  of  lawyers,  in  any  legislature,  can  overcome  even 
this  difficulty ;  and  such  a  body,  in  any  community, 
might  well  hope  to  carry  through  so  reasonable  a  provision 
as  that  of  charging  the  courts  with  a  general  control  over 
the  rules  of  evidence,  when  once  they  themselves  were 
persuaded  of  the  need  of  it.  But  I  do  not  forget  that,  on 
such  subjects  as  this,  the  lawyers  are  often  the  persons 
chiefly  needing  to  be  roused  and  convinced,  and  that  this 
is  the  greatest  obstacle  to  be  overcome.  This  was  strongly 
put  two  years  ago  by  a  leading  member  of  the  bar.^  In 
recommending  to  a  body  of  young  lawyers  as  their  special 
work,  "for  all  their  lives,"  —  aside  from  the  necessary 
work  of  their  immediate  calling,  —  the  great  business  of 
"the  amendment  of  the  law,"  using  the  words  in  a  large 
sense,  the  distinguished  speaker  recognized  the  fact  "that 
no  class  in  modern  society  is  more  conservative,  more 
timid  in  promoting,  more  resolute  in  resisting,  alterations 
in  existing  law,  than  the  body  of  which  we  are  members." 
And  after  alluding  to  other  possible  reasons  for  what  he 
calls  "the  dull  conservatism  of  many  lawyers,"  he  adds 
tiiat  "there  is  a  timidity  borne  of  mere  ignorance.  .  .  . 
And  so  it  is  the  narrowness  of  vision,  the  imperfect  intelli- 
gence of  many  lawyers  which  makes  them  .  .  .  apprehen- 
sive of  changes  which  they  think  untried  experiments." 
These  excellent  suggestions  point  to  the  chief  difficulty  in 
accomplishing  such  a  change  as  I  am  proposing,  so  far  as 
it  is  dependent  on  legislation.  Yet,  as  I  said,  a  few 
enliglitened  and  resolute  lawyers,  men  of  recognized  legal 
capacity  and  character,  could,  with  good  fortune,  carry 
through  any  of  our  legislatures  some  such  prudent  measure 
of  reform  as  I  am  suggesting.  In  Massachusetts  we  have 
had  a  typical  illustration  of  what  a  well-trained  lawyer 
may  do  for  liis  profession  in  the  way  of  law  reform,  by  the 
simph'st  methods.  Nearly  fifty  years  ago  Mr.  1).  K.  Curtis, 
—  who,    two    years   later,    in    18.51,    became    Mr.   Justice 

'   Address  by  lion.  Tlioodore  Bacon,  before  the  Graduating  Class  of 
the  Vale  Law  School,  in  189C. 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.  533 

Curtis  of  the  Supreme  Court  of  the  United  States,  —  being 
a  member  of  the  Massachusetts  House  of  Representatives, 
introduced  a  resolution  for  the  appointment  of  three  com- 
missioners "to  revise  and  reform  the  proceedings  in  the 
courts  of  justice  in  this  Commonwealth,  except  in  criminal 
cases,  subject  to  the  approval  of  the  legislature."  It  was 
unanimously  adopted,  and  Mr.  Curtis,  with  two  other 
leading  lawyers  of  the  State,  was  appointed  to  the  task. 
In  1851  they  prepared  the  draft  of  what  has  since  been 
known  as  the  "Practice  Act."  The  commission  proceeded 
cautiously,  in  some  respects  too  cautiously,  and  consulted 
the  bench  and  bar  freely;  their  measure  was  accompanied 
by  an  admirable  report  of  some  twenty  octavo  pages,  under- 
stood to  have  been  prepared  by  Judge  Curtis,  which  has 
still  the  merits  of  a  legal  classic,  giving  the  reasons  for 
their  action.^  The  bill  was  but  slightly  changed  by  the 
legislative  committees  to  whom  it  was  referred;  and  it 
passed  without  dissent.  It  was  a  careful  but  radical 
change  of  the  whole  civil  procedure  of  the  State  at  common 
law.  A  few  changes  were  made  in  1852  by  a  repeal  and 
re-enactment,  but  they  left  the  law  substantially  the  same, 
and  Massachusetts  has  lived  under  it  with  success  and 
satisfaction  ever  since,  making  only  occasional  improve- 
ments. In  Connecticut,  in  1879,  similar  reforms  were 
accomplished  under  the  leadership  of  a  distinguished 
lawyer,  now  a  member  of  the  Supreme  Court  of  that 
state  ;^  and  other  instances  might  be  cited  in  other  States 
of  our  country.  As  for  England,  everybody  knows  of  the 
great  measures,  under  the  general  title  of  the  Judicature 
Acts,  which  have  been  carried  through  in  the  last  quarter 
of  a  century,  under  the  impulse  of  Lord  Selborne. 

But  even  without  legislation,  the  judges  have  great 
power  over  the  subject,  direct  as  well  as  indirect.  A 
system  which  mainly  came  into  life  at  their  hands  and  has 
been  constantly  moulded  by  them,  by  way  of  administering 

1  Life  of  R.  R.  Curtis,  ii.  149. 

2  Hon.  Simeon  E.  Baldwin. 


534  LAW   OF   EVIDENCE. 

procedure,  they  can  also  largely  reshape  and  recast,  if  they 
will.  But  no  court  should  enter  upon  this  task  that  is  not 
sure  of  its  ground,  that  does  not  pretty  well  understand 
the  history,  nature,  and  scope  of  the  existing  rules,  and 
see  pretty  clearly  where  it  means  to  come  out.  With  these 
preparations,  however,  the  course  taken  from  time  to  time 
by  the  English  judges  is,  in  a  good  degree,  open  to  ours. 
By  using  strongly  their  power  to  shape  the  procedure  and 
modify  it  by  rules  of  court,  they  can  do  much  directly; 
and  by  discouraging  an  unjust  and  overstrained  applica- 
tion of  the  rules  of  evidence,  by  construing  them  freely 
and  in  a  large  way,  by  refusing  to  interfere  with  the  rul- 
ings of  the  lower  courts  except  in  cases  of  abuse  or  clear 
and  important  error,  by  encouraging  a  more  elastic  pro- 
cedure in  shaping  questions  for  the  upper  court,  by  recur- 
ring always  to  fundamental  principles,  and  incliuing  always 
to  give  effect  to  these  as  against  exceptional  and  special 
rules,  and  generally  by  recognizing,  resolutely  and  per- 
sistently, the  subordinate,  auxiliary,  secondary,  wholly 
incidental  character  and  aim  of  the  rules  of  evidence 
(properly  so  called),  they  can  indirectly  do  a  very  great 
deal.  Let  me,  however,  repeat  again  and  again,  and  with 
emphasis,  that  I  mean,  in  speaking  of  the  secondary  char- 
acter of  the  rules  of  evidence,  to  refer  only  to  what  is 
properly  so  called;  and  let  me  again  and  again  insist  that 
the  body  of  rules  now  called  by  that  name  should,  without 
needless  delay,  be  p^irged  of  that  spurious  matter,  rudis 
indujestaque  moles,  belonging  to  the  substantive  law,  to 
the  general  rules  of  legal  reasoning,  and  to  other  parts  of 
tlie  law  of  procedure,  of  which  I  have  repeatedly  spoken. 

What  about  the  jury  ?  some  one  may  ask.  If  our  present 
system  of  evidence  lias  been  called  out  by  the  jury,  and  we 
still  have  that,  why  must  not  the  law  of  evidence  continue  ? 
Tliat  suggests  the  question,  whether  the  jury  itself  must 
continue  ?  The  jury  system  is  already  mucli  modified. 
The  experience  of  England,  jNFassachusetts,  and  some  other 
States,  where  for  some  years,  in  most  civil  cases,  no  person 


PRESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.  535 

has  a  jury  trial  unless  he  asks  for  it  before  a  certain  time, 
has  been  satisfactory.  This  has  worked  a  great  cutting 
down  in  the  number  of  jury  trials.  It  appears  to  me  that, 
with  or  without  the  aid  of  changes  in  constitutional  pro- 
visions, more  may  well  be  done  in  reducing  the  number  of 
jury  trials  in  civil  and  criminal  cases.  Personally  I  should 
think  that  it  was  not  wise  to  abolish  jury  trial  in  civil 
cases,  —  of  course  not  in  criminal  cases,  —  but  only  that  it 
should  be  restricted  still  farther.  Indeed,  in  civil  cases,  I 
would  restrict  it  narrowly,  for  it  appears  to  me,  among 
other  things,  to  be  a  potent  cause  of  demoralization  to  the 
bar.  In  so  far  as  it  has  been  or  may  be  restricted,  the 
objections  to  any  changes  in  our  system  of  evidence  which 
are  founded  on  its  relation  to  jury  trial  are  lessened. 

But  apart  from  all  that,  it  may  be  said,  truly,  that  juries 
are  now  much  less  helped  and  restrained  by  the  judicial 
contrivances  which  find  expression  in  our  rules  of  evi- 
dence than  is  sometimes  thought.  Judges,  to  a  large 
extent,  sit  quiet  and  let  parties  try  their  cases  with  as 
loose  an  application  of  the  rules  of  evidence  as  they  them- 
selves may  wish.  Indeed,  the  waiving  of  these  rules  has 
been  judicially  declared  to  be  the  right  of  litigating  parties 
in  all  cases.  "As  the  rules  of  evidence,"  said  Chief 
Justice  Shaw,  in  1848,^  "are  made  for  the  security  and 
benefit  of  parties,  all  exceptions  may  be  waived  by  mutual 
consent."  Allowing  that  this  is  overstated,  it  may  still 
be  insisted  that  the  old  conceptions  of  a  jury's  incapacity, 
and  of  the  need  of  so  much  exclusion,  were  overstrained, 
and  that  they  are  largely  inapplicable  to  modern  juries. 

I  will  leave  aside  any  question  of  changing  the  jury 
system,  and  assume  that  it  is  to  be  in  no  degree  restricted. 
Undoubtedly,  at  least  in  my  opinion,  it  will  long  continue, 
and  should  continue,  to  a  greater  or  less  extent.  So  long 
as  it  does,  we  must  have  a  law  of  evidence,  i.  e.,  a  set  of 
regulative  and  excluding  precepts,  enforced  by  the  presid- 
ing officer  of  the  meeting,  namely,  the  judge.     In  exercising 

1  Shaw  V.  Stone,  1  Cush.  228,  243. 


536  LAW   OF  EVIDENCE. 

this  function  the  court  must  continue  to  apply  certain 
great  principles,  such  as  these:  (1)  That  the  jury  must,  so 
far  as  possible,  personally  see  and  hear  those  whose  state- 
ments of  fact,  oral  or  written,  they  are  asked  to  believe ; 
(2)  that  witnesses  must,  so  far  as  possible,  testify  orally, 
publicly,  under  strong  sanctions  for  truth-telling,  and  that 
both  parties  must  have  full  opportunity  to  examine  or 
cross-examine  under  the  court's  supervision ;  (3)  that  in 
the  case  of  writings  the  jury  must,  so  far  as  possible,  per- 
sonally and  publicly  inspect  such  as  they  are  expected  to 
act  upon  ;  (4)  that  whatever  is  said  or  shown  to  the  jury, 
or  privately  known  to  them,  bearing  on  the  case,  must  be 
said,  shown,  or  stated  publicly,  in  presence  of  the  court 
and  of  all  parties  concerned ;  (5)  that  the  execution  of 
solemn  documents  must  be  clearly  shown,  and  that  they 
must  be  faithfully  construed  according  to  the  written  terms ; 
(6)  that  the  jury  must  not  be  obliged  or  permitted  to  listen 
to  what  will  unduly  delay  the  case,  or  too  much  tend  to 
confuse  or  mislead  them ;  (7)  that  the  jury  may  be  aided 
by  the  opinions,  on  matters  of  fact,  of  persons  specially 
qualified,  wherever  they  are  likely  to  be  materially  helped 
by  it ;  (8)  that  the  court  must  have  power  to  review  and 
set  aside  the  verdict  of  the  jury,  in  order  to  prevent  gross 
injustice,  and  secure  conformity  to  the  rules  of  law  and 
the  requirements  of  sound  reason,  —  in  no  case  substituting 
their  own  judgment  for  that  of  the  jury,  and  always  exer- 
cising a  nierely  restraining  power. 

I  am  assuming  that  the  two  fundamental  propositions 
already  namc^d^  are  kept  in  mind.  In  giving  effect  to 
these  and  in  regulating  details,  if  a  few  comprehensive, 
fundamental  ])rinci})les  like  these,  derived  from  experience 
and  at  the  bottom  of  our  present  system,  be  followed,  con- 
strued and  applied  in  a  liberal  way  ;  and  if  the  application 
of  them  be  kept  steadily  under  the  oversight  and  control 
of  the  court,  by  being  dealt  with  as  rules  of  court,  it 
appears  to  nic  tliat  our  system  of  evidence  might  bo  vastly 

1   Sitprn,  n.'JO. 


PKESENT  AND  FUTURE  OF  THE  LAW  OF  EVIDENCE.  537 

improved,  and  be  made  conformable  to  the  changing  con- 
venience of  mankind. 

And  now,  finally,  if  it  be  said  that  we  have  not  judges 
fit  for  the  large  discretion  thus  to  be  confided  to  them, 
several  things  may  be  said  in  answer  :  — 

1.  That  sort  of  remark  about  our  judges  is  often  made 
when  one  has  in  mind,  not  the  judges  of  his  own  courts, 
or  of  any  courts  that  he  knows  most  about,  but  some  other 
judges  in  some  other  parts  of  the  country.  Admitting  that 
the  statement  may  be  true  in  some  places,  it  is  not  true 
of  the  higher  Federal  courts  anywhere,  or  of  the  higher 
courts  in  most  of  our  States.  It  is  not  true  in  England. 
Wherever  it  is  not  true,  that  particular  jurisdiction  need 
not  be  deterred  from  giving  to  its  highest  courts  the  pro- 
posed recognition  and  enlai'gement  of  discretionary  power. 
And  the  example  thus  afforded  will  be  likely  to  help 
matters  elsewhere. 

2.  If  the  judges  in  any  place  are  not  fit  for  any  given 
functions  which  those  in  other  places  exercise  with  benefit 
to  the  community,  or  which  it  is  thought  well  to  put  upon 
them,  that  is  a  reason  for  changing  the  breed  of  judges. 
And  we  may  remember  that,  in  most  of  our  States,  a  change, 
whether  for  better  or  worse,  is  only  too  quickly  and  easily 
possible. 

3.  The  objection,  however,  may  have  another  answer. 
Those  who  make  it,  forget,  for  the  moment,  how  much 
discretion  is  already  reposed  in  the  judges,  and  exercised 
by  them  at  every  hour  of  the  day  and  in  every  part  of  their 
functions.  In  imposing  criminal  sentences,  in  punishing 
contempts,  in  passing  upon  motions,  in  making  rules  of 
court  and  regulating  practice  and  procedure,^  in  adopting 
rules  of  presumption,  in  determining  the  limits  of  judicial 
notice,  in  applying  the  rules  of  evidence,  and  in  conduct- 

1  See,  for  example,  as  I  am  reminded  by  my  colleague,  Professor 
Smith,  himself  formerly  a  distinguished  member  of  the  Supreme  Bench 
of  New  Hampshire,  the  experience  of  that  State  during  the  administra- 
tions of  Chief  Justice  Bell  and  Chief  Justice  Doe. 


538  LAW  OF  EVIDENCE. 

ing  trials  generally,  —  in  discharging  these  and  other 
duties,  a  vast  discretionary  power  is  everywhere  exercised. 
Men  who  can  safely  be  intrusted  with  the  discretion  which 
the  ordinary  exercise  of  the  judicial  office  imports,  every 
day  of  the  week,  are  fit  to  undertake  the  function  that  I 
am  now  suggesting. 


APPENDIX  A. 

[Supra,  313.] 


[From  the  (English)  Law  Magazine,  vi.  348.     October,  1831.] 
PRESUMPTIONS   OF   LAW  AND   PRESUMPTIVE   EVIDENCE. 

Presumptions  are  commonly  divided  by  writers  on  English 
law,  into  two  classes,  namely,  presumptions  of  law,  and  presump- 
tions of  fact. 

Presumptions  of  law  are  of  two  kinds.  First,  conclusive  or 
imperative  presumptions,  that  is,  legal  rules  not  to  be  overcome 
by  any  evidence  that  the  fact  is  otherwise.  Thus  by  the  statiite 
of  limitations,  a  simple  contract  debt,  not  kept  up  in  certain  speci- 
fied manners,  is  extinguished  after  a  lapse  of  six  years;  nor  can  it 
be  recovered  by  proving  that  the  sum  due  has  never  been  paid. 
So  if  a  man  gives  a  receipt  in  full  under  seal,  evidence  of  a 
prior  unsatisfied  debt  is  not  admissible. ^  The  cases  in  which  par- 
ties are  bound  by  similar  admissions,  and  particularly  by  admis- 
sions on  the  record,  are  very  numerous.  Again,  a  sane  man  is 
presumed  to  contemplate  the  probable  consequences  of  his  own 
acts;  and  this  presumption  is  conclusive,  nor  may  he  rebut  it  by 
showing  that  in  fact  he  did  not  foresee  them.^  So  that  by  this  rule 
a  man  is  made  responsible  for  the  consequences  of  his  acts,  whether 
his  conduct  is  marked  by  heedless  negligence,  or  obstinate  rashness. 
Of  the  same  nature  are  all  rules  respecting  the  limitation  of  actions 
and  title  by  prescription,  which  Mr.  Starkie  calls  artificial  presump- 

1  3  Starkie  Evid.,  tit.  Receipt. 

2  Per  Lord  Ellenborough,  "  It  is  an  universal  principle  that  when  a  man 
is  charged  with  doing  an  act  of  which  the  probalde  consequence  may  be 
highly  injurious,  the  intention  is  an  inference  of  law  resulting  from  the 
doing  the  act."  Rex  v.  Dixon,  3  M.  &  S.  15.  See  Law  Mag.  vol.  v. 
p.  365. 


540  APPENDIX  A. 

tions;!  but  they  are  no  more  artificial  than  any  other  rule  of  law; 
and  when  it  is  said  that  twenty  years'  peaceable  enjoyment  of  an 
easement  raises  a  presumption  of  a  grant,  this  is  only  a  clumsy  and 
circuitous  mode  of  expressing  the  rule  that  twenty  years'  peaceable 
enjoyment  gives  a  prima  facie  title  to  an  easement.  It  is  no  more 
capricious  or  absurd  that  this  presumption  should  not  apply  to  a 
possession  of  nineteen  years  and  three  hundred  and  sixty-four  days, 
than  that  a  man  should  be  a  minor  at  the  age  of  twenty  years  and 
three  hundred  and  sixty-four  days. 

In  some  cases  of  conclusive  legal  presumption,  a  party  is  said  to 
be  estopped,  and  to  have  created  an  estoppel  against  himself.  An 
estoppel  is  when  a  man  has  done  some  act  which  affords  a  conclu- 
sive presumption  against  himself  in  respect  of  the  matter  at  issue. 
Thus,  if  a  plaintiff  disputes  the  title  of  the  defendant  to  certain 
lands,  and  it  appears  that  he  holds  them  as  tenant  to  the  defendant, 
this  affords  a  conclusive  presumption,  which  he  may  not  dispute, 
that  his  landlord  is  rightfully  entitled  :  in  other  words,  a  tenant  is 
estopped  from  disputing  his  landlord's  title. 

Formerly,  all  children  born  in  lawful  wedlock,  if  the  husband 
was  not  impotent,  or  beyond  the  four  seas  during  a  period  exceed- 
ing that  of  gestation,  were  legitimate  ;  nor  could  evidence  to  the 
contrary  be  received  in  a  court  of  law.^  The  presumption  of  law 
was  then  imperative  ;  whatever  might  have  been  the  real  facts  of 
the  paternity,  and  however  clearly  they  might  be  proved,  still  the 
husband  was  considered  as  the  father  of  his  wife's  children.  Since 
that  time,  however,  the  rule  has  been  changed,  and  probable  evi- 
dence that  the  husband  was  not  the  father  of  the  child,  is  admissi- 
ble.^     'Jhe  presumption,  therefore,  in  this  case  now  belongs  to  the 

1  3  Evid.  1235. 

-  Co.  Litt.  244  a.     See  the  Edinburgli  Review,  vol.  xlix.  p.  190. 

3  "  I  apprehend  the  law  to  be,  that  tlio  birth  of  a  cliild  duriug  wedlock 
raises  a  presumption  (oflnw)  that  such  child  is  legitimate;  that  this  pre- 
sumption may  be  rebutted  both  by  direct  and  presumptive  evidence ;  tliat 
uudor  tiio  first  head  may  be  classed  impotency  and  non-access,  that  is, 
impossibility  of  access;  and  under  tiic  second,  all  tliose  circumstances 
which  can  liavo  tlio  effect  of  r.aising  a  presumi)tii)n  {of  fact)  that  tlie  ciiild 
is  not  the  issue  of  the  luisband."  Lord  Hedcsdalo  in  tlie  Hanbury  Peer- 
ago  case,  Gardner  rccrago  by  Le  Marciiant,  4.32.  Lord  Hedosdale,  in 
these  remarks,  lias  confounded  iliirrt  and  jtresitmptive  evidence  with  certain 
iiui\  prohdiilc  evidence.  Impotency  or  non-access  is  only  an  indirect  ])roof 
of  illegitimacy,  althougli  it  is  a  proof  wiiich  admits  of  uo  doubt. 


PRESUMPTIONS,   ETC.  541 

second  and  more  comprehensive  kind  :  i.  e.,  when  presumptions  of  law 
are  certain  assumptions  or  legal  rules,  defining  the  amount  of  evi- 
dence requisite  to  support  a  particular  allegation,  which  facts  being 
proved,  may  be  either  explained  away  or  rebutted  by  evidence  to 
the  contrary,  but  are  conclusive  in  tlie  absence  of  such  evidence. 
The  distinction  between  the  two  kinds  of  legal  presumptions  is 
clearly  stated  by  Lord  Mansfield  in  Darwin  v.  Upton. ^  "  The 
enjoyment  of  lights,  with  the  defendant's  acquiescence  for  twenty 
years,  is  such  decisive  presumption  of  a  right  by  grant  or  otherwise, 
that  unless  contradicted  or  explained,  the  jury  ought  to  believe  it : 
but  it  is  impossible  that  length  of  time  can  be  said  to  be  an  abso- 
lute bar,  like  a  statute  of  limitation;  it  is  certainly  a  presumptive 
bar  which  ought  to  go  to  a  jury."  ^  Legal  presumptions  of  this 
latter  kind  (which  may  be  termed  disputable  or  rebuttable  pre- 
sumptions) are  definitions  of  the  quantity  of  evidence,  or  the  state 
of  facts,  sufficient  to  make  out  a  prima  facie  case;  in  other  words, 
of  the  circumstances  under  which  the  burden  of  proof  lies  on  the 
opposite  party.  Of  this  very  extensive  class  of  presumptions  a  few 
examples  will  suffice.  Thus,  a  man  is  presumed  innocent  until  he 
is  proved  guilty;  that  is,  if  a  man  is  charged  with  a  crime,  he  is 
not  bound  to  prove  that  he  did  not,  but  his  accuser  is  bound  to 
prove  that  he  c? if/ commit  it.^  Thus,  twenty  years'  peaceable  enjoy- 
ment of  an  easement,  throws  on  any  claimant  the  burden  of  proving 

1  2  Saund.  175  b,  note. 

2  "  I  have  known  (says  Mr.  Christian,  note  to  3  Bl.  Com.  369)  a  witness 
rejected,  and  hissed  out  of  court,  who  declared  that  he  doulited  of  the 
existence  of  a  God  and  a  future  state.  But  I  have  since  heard  a  learned 
judge  declare  at  nisi  prius,  that  the  judges  had  resolved  not  to  permit 
adult  witnesses  to  be  interrogated  respecting  their  belief  of  a  Deity  and  a 
future  state.  It  is  probably  more  ccmducive  to  the  course  of  justice,  that 
this  should  be  presumed  till  the  contrary  is  proved.  And  the  most  relig- 
ious witness  may  be  scandalized  by  the  imputation,  wln'ch  the  very  ques- 
tion conveys."  The  establishment  of  this  conclusive  presumption  would 
be  nearly  equivalent  to  admitting  tlie  evidence  of  Atheists,  which  is  now 
excluded  ;  as  it  would  be  almost  impossible  to  prove  tlie  exact  state  of  a 
man's  belief.  This  change,  tlierefore,  as  indeed  of  all  the  rules  of  exclu- 
sion of  evidence,  is  very  desirable,  but  lias  not  yet  lieen  effected. 

3  In  cases  of  homicide,  however,  if  it  merely  appears  that  one  man  has 
killed  another,  he  is  presumed  to  be  guilty  of  murder,  unless  such  evidence 
is  produced  as  will  either  reduce  the  offence  to  manslaughter,  or  entirely 
remove  its  criminality,  by  justifying  or  excusing  it.  See  Law  Mag 
vol.  v.  p.  362. 


542  APPENDIX   A. 

that  the  possessor's  title  is  bad,  and  that  lie  has  a  better.  So  if  a 
child  is  born  in  wedlock,  one  who  questions  his  legitimacy  must  dis- 
prove it :  if  a  child  is  born  during  a  divorce  a  mensa  et  thoro,  one 
who  maintains  his  legitimacy  must  prove  it.  Again,  the  presump- 
.tion  of  law  is  that  a  man  is  alive,  unless  nothing  has  been  heard  of 
him  for  seven  years,  when  the  presumption  is  that  he  is  dead:  that 
is  to  say,  if  it  is  averred  that  a  man  is  dead,  the  party  must  prove 
his  assertion;  but  if  nothing  has  been  heard  of  him  for  seven  years, 
the  opposite  party  must  prove  that  he  is  alive.  Waste  land  which 
adjoins  a  road  is  presumed  to  belong  to  the  owner  of  the  adjoining 
enclosed  land ;  whose  title  is  therefore  valid,  unless  some  one  can 
show  a  paramount  claim. 

The  circumstances  which  will  raise  such  a  legal  presumption,  or, 
in  other  words,  will  impose  on  the  other  party  the  necessity  of 
proving  that  the  fact  is  not  so,  sometimes  differ  with  regard  to  the 
same  fact  in  different  issues:  that  is,  evidence  which  in  one  issue  is 
sufficient  to  establish  a  certain  fact,  in  another  is  not  sufficient. 
Thus,  in  settlement  cases,  proof  of  a  long  cohabitation  of  two  per- 
sons who  passed  as  man  and  wife,  is  sufficient  to  raise  a  presump- 
tion of  marriage,  or  to  compel  the  other  party  to  prove  that  there 
was  no  marriage.  But  in  trials  for  bigamy  and  actions  for  crimi- 
nal conversation,  proof  of  an  actual  marriage  is  requisite.  So 
likewise,  in  actions  for  breach  of  promise  of  marriage,  a  promise  on 
the  part  of  the  woman  may  be  proved  by  outward  marks  of  accept- 
ance, and  .such  a  conduct  as  would  be  natural  towards  an  accepted 
suitor.  But  on  the  part  of  the  man, such  facts  will  not  raise  a  pre- 
sumption of  a  promise,  which  must  be  proved  by  direct  evidence. 

The  question  therefore,  with  regard  to  the  latter  kind,  or  dis- 
putable presumptions  of  law,  resolves  itself  into  this  :  what  state 
of  facts  being  proved  or  admitted,  in  other  words,  what  amount  of 
evidence,  shall  be  sufficient  to  support  the  allegations  of  the  one 
party,  so  as  to  compel  the  other  party  either  to  disprove  or  explain 
them?  This  question  arises,  and  must  be  decided  by  legal  rules, 
in  every  case  which  conies  before  a  court  of  justice.  The  doctrine 
of  legal  presumptions  therefore  is  not  a  subject  which  can  be  treated 
by  itself,  as  it  runs  through  the  whole  law  of  evidence,  and  is  inter- 
woven with  its  entire  texture  :  in  every  different  subject  it  must  be 
laid  down  wli;it  amfumt  of  evidence  is  sutFicietit  to  raise  a  presump- 
tion, or  to  show  a  /iriina  facie^  case,  and  Id  throw  on  the  opposite 

'  "/'/•//«<■(  yJ/r/V  evidence  is  that  wliicli,  not  l)cing  incoiisisteiit  witli  tlie 
falsity  of  the  liypiitliosis,  novorllielcys  rai.scs  sucii  a  degree  of  probability 


PRESUMPTIONS,   ETC.  543 

side  the  burden  either  of  proving  the  contrary,  so  that  the  obligation 
never  attaches,  or  of  showing  that,  though  the  obligation  once 
attached,  he  is  now  released  from  it.  For  example,  the  plaintiff 
makes  a  prima  facie  case  by  proving  the  defendant's  signature  to  a 
promissory  note;  which  case  the  defendant  may  answer,  either  by 
proving  that  the  signature  is  a  forgery,  when  he  would  not  be  lia- 
ble, or  that  the  note  has  been  paid,  when  the  liability  having 
existed  would  have  been  discharged.  The  rules  on  the  doctrine  of 
legal  presumptions,  a  doctrine  not  only  of  universal  application 
throughout  the  law  of  evidence,  but  of  the  highest  importance  to 
the  community,  may,  in  many  cases,  be  referred  to  the  four  follow- 
ing maxims  :  —  1st.  That  no  one  shall,  in  the  first  instance,  be 
called  on  to  prove  a  negative,  or  be  put  on  his  defence,  without 
sufficient  evidence  against  him  having  been  offered,  which,  if  not 
contradicted  or  explained,  would  be  conclusive.  2d.  That  the 
affirmative  of  the  issue  must  be  proved;  otherwise  men  might  be 
called  upon  by  a  sti-anger  to  prove  the  title  to  their  property,  which 
they  might  often  be  unable  to  do,  though  the  title  was  in  fact  good. 
3d.  That  possession  is  prima  facie  evidence  of  property.  If  in  all 
actions  founded  on  a  right  of  property,  the  plaintiff  was  forced  to 
prove  his  title,  the  security  of  property  would  be  much  diminished 
by  such  disclosures,  and  the  uncertainty  of  litigation  much  in- 
creased. The  4th  maxim  is  commonly  expressed  in  the  words 
"  Omnia  prcesumuntur  rite  ef  solenniter  acta,^'  i.  e  ,  whatever  any 
thing  or  person  appears  or  professes  to  be,  is  considered  to  be  the 
fact,  until  the  contrary  is  proved.  What  could  be  more  dangerous 
to  the  quiet  enjoyment  of  property  and  the  peace  of  society,  than  a 
liberty  to  put  any  man  to  the  proof  that  a  deed  is  genuine,  that  his 
birth  is  legitimate,  that  his  marriage  is  valid?  It  would  be  in  vain 
that  the  law  protected  the  innocent,  if  any  man  could  be  called 

in  its  favor,  that  it  must  prevail,  if  it  he  accredited  by  the  jury,  unless  it 
be  rebutted  or  the  contrary  proved."  1  Stark.  Ev.  453.  Mr.  Starkie  has 
here  introduced  an  unnecessary  condition  into  his  definition.  Conclusive 
evidence  is  not  inconsistent  with  the  falsity  of  the  hypothesis  :  so  far  from 
it  indeed,  that  it  is  made  conclusive  for  no  other  reason  than  because  the 
contrary  men/  be  proved.  The  simple  account  of  the  matter  is,  that  prima 
facie  evidence  is  that  amount  of  evidence  which  is  sufficient  to  establish  a 
certain  fact :  when  this  amount  is  fixed  by  law,  the  rule  to  this  effect  is 
termed  a,  presumption  of  law ;  when  it  is  not,  it  must  be  left  to  the  jury  to 
determine  what  conclusion  is  to  be  drawn  from  the  facts  proved,  and 
whether,  if  uncontradicted  or  unexplained,  they  make  out  the  case. 


544  APPENDIX  A. 

upon  to  prove  that  he  was  not  guilty;  or  that  it  protected  property, 
if  property  could  only  be  held  by  a  continual  war  of  litigation. 

If  these  views  with  regard  to  presumptions  are  correct,  it  will  be 
impossible  to  agree  with  the  remarks  of  IMr.  Benthatn,  who  main- 
tains that  the  contrary  of  the  maxim,  that  he  who  makes  an  aver- 
ment should  prove  it,  ought  to  be  followed.^  What  he  means  is 
not  very  clear  :  for  it  is  not  to  be  supposed  that  a  party  could  be 
called  on  to  prove  that  which  is  against  himself,  or  to  give  evi- 
dence for  the  affirmative  of  an  issue  by  which  he  is  to  be  a  loser ; 
that  the  defendant  should  prove  the  plaintiff's  case,  and  the  plain- 
tiff the  defendant's.  Mr.  Bentham  probably  means,  that  the 
plaintiff  should  not  be  called  upon  to  prove  his  case,  but  that  the 
defendant  should  be  first  bound  to  disprove  the  plaintiff's  allega- 
tions. If  this  is  Mr.  Bentham's  meaning,  such  a  rule  would,  in  our 
opinion,  completely  destroy  the  security  of  property,  and  especially 
of  chattels  or  movables;  altliough  he  is  pleased  'to  say  that  it  is 
recommended  by  the  system  of  "plain  and  simple  justice  and  natu- 
ral procedure."  In  another  place  he  lays  down  a  rule  to  the  same 
effect  as  that  just  noticed,  namely,  that  "  between  plaintiff  and  de- 
fendant, the  presumption  ought  to  be  in  favor  of  the  former,  to 
the  prejudice  of  the  latter."  His  chief  argument  is  contained 
in  the  following  passage.  "  I  am  aware  that  many  lawyers  lean 
to  the  contrary  presumption.  They  are  misled  by  an  illusion.  A 
defendant  appears  to  their  mind  as  a  man  attacked  in  his  right  of 
possession ;  and  the  presumption  ought  to  be  in  favor  of  the 
possessor,  because  the  number  of  lawful  possessors  is  infinitely 
greater  than  that  of  unlawful  possessors.  But  this  is  not  the 
state  of  the  question.  The  point  is.  whether,  in  cases  of  disputed 
possession,  the  instances  in  which  the  party  calling  the  possession 
in  question  is  in  the  right  do  not  greatly  exceed  those  in  which  he 
is  in  the  wrong."  (Book  vi.  ch.  ii.)  Undoubtedly  they  do;  and, 
as  we  humbly  submit,  for  no  other  reason  than  because  the  pre- 

1  Bentham  on  F.viiloncr',  l)y  Dnmoiit,  book  vii.  c.  Ifi.  The  voluminous 
paj)er.s  of  Mr.  Ucntliam  on  the  subject  of  evidence  were  transmitted  to  the 
latb  M.  Duniont,  who  extracted  from  them  a  treatise  which  lie  published 
in  two  vols,  under  tlie  name  of  Tralte  ties  Preiivcs  Judiciaircs.  This 
work  baa  been  translated  into  English,  and  publislicd  in  one  vol.  (Lou- 
don, 182.^)).  An  edition  of  the  papers  from  which  this  work  was  formed 
was  publialied  by  Mr.  Jolui  Mill,  in  five  tliick  vols,  by  the  name  of  the 
lintionale  nf  Evidence.  We  sliall  have  occasion  liereafter  to  refer  to  both 
tlicse  works. 


PRESUMPTIONS,  ETC.  645 

sumption  of  law  is  in  favor  of  the  defendant;  in  other  words, 
because  the  onus  prohandi  lies  on  the  plaintiff,  who  is  called  on  to 
prove  his  own  case,  and  therefore  would  not  go  into  court  unless  he 
thinks  that  that  case  is  good.  If  the  presumption  was  in  favor  of 
the  plaintiff,  and  if  the  burden  of  proof  lay  not  on  the  claimant, 
but  on  the  possessor,  the  courts  of  justice  would  be  besiep;ed  by  all 
persons  who  had  any  malice  to  gratify,  or  enemies  to  be  revenged 
on ;  such  claimants  might  at  least  deprive  others  of  their  property, 
if  they  did  not  make  a  title  to  it  themselves ;  litigation  would  be 
the  most  powerful  instrument  of  oppression,  when  any  man  might 
by  any  man  be  put  on  his  defence.  Under  such  a  law,  a  large  part 
of  the  personal  property  in  the  kingdom  would  soon  fall  to  the 
crown,  as  being  without  an  owner:  unless,  indeed,  the  rightful 
owners  thought  themselves  justified  in  employing  false  witnesses 
to  defend  an  honest  cause,  salving  their  consciences  with  the  plea 
that  the  end  sanctitied  the  means. 

It  should  be  carefully  remarked,  that  in  both  kinds  of  legal  pre- 
sumption there  is  no  inference  ;  the  rule  of  law  merely  applies  or 
attaches  to  the  circumstances  when  proved,  and  is  not  deduced  from 
them.  Thus  where  children  are  born  in  wedlock,  and  there  was 
opportunity  of  access  within  the  period  of  gestation,  the  law  pre- 
sumes or  assumes  their  legitimacy ;  if  it  is  proved  that  A  or  B  was 
born  under  such  circumstances, /««  legitimacy  is  inferred,  and  must 
be  disproved  by  those  who  deny  it.  But  the  presumption  of  law  is 
one  of  the  propositions  from  which  this  conclusion  is  drawn,  nor 
does  it  appear  that  the  inference  itself,  or  the  entire  argument,  is 
ever  called  a  legal  presumption. 

Moreover,  in  both  cases,  a  presumption  of  law  is  an  assumption 
or  proposition.  In  the  one  case  a  categorical  proposition,  or  an  ex- 
press rule  of  law  (as,  "  a  discharge  in  full  under  seal  extinguishes 
all  prior  claims  of  the  releasor  against  the  releasee.")  In  the  other 
case,  a  conditional  proposition  (in  this  form,  "  if  there  is  no  proof 
to  the  contrary,  a  man  is  taken  to  be  innocent "),  liable  to  be  over- 
come by  evidence  on  the  other  side. 

Of  these  two  classes  of  legal  presumption,  that  relating  to  prima 
facie  cases,  or  the  burden  of  proof,  itself  forms  an  important  part 
of  the  law  of  evidence ;  the  other  class,  however,  of  conclusive 
presumptions  has  not,  properly,  any  particular  reference  to  that 
subject.  Certain  facts  are  by  the  law  made  conclusive  under 
certain  circumstances  :  it  follows,  therefore,  of  necessity,  that  evi- 
dence is  not  admissible  to  contradict  or  explain  them,  as  they  are 

35 


546  APPENDIX   A. 

equally  conclusive,  explained  or  unexplained,  contradicted  or  uncon- 
tradicted; and  that  they  form  a  conclusive  defence,  after  the  con- 
trary has  been  proved,  as  they  have  no  reference  to  the  truth  or 
falsity  of  the  facts  which  the  party  who  is  concluded  seeks  to 
establish.   .  .   . 

The  other  branch  of  legal  presumptions,  namely,  presumptions 
which  do  not  conclude  the  opposite  party,  if  he  is  in  a  condition  to 
disprove  or  explain  the  facts  proved,  forms,  in  our  estimation,  the 
most  important  part  of  the  law  of  evidence.  To  define  "  the  nature 
and  amount  of  the  evidence  whicli  the  law  renders  sufficient  to 
establish  a  prima  facie  case,  and  throw  the  onus  probandi  upon  the 
other  side,"  ^  is  a  work  of  great  difficulty  and  labor.  The  sub- 
ject is,  however,  one  which  cannot  be  conveniently  treated  by  itself, 
but  the  rules  of  which  it  is  composed  must  be  laid  down  severally 
uoder  the  different  issues  which  arise  in  courts  of  law. 

Presumption  of  fact  has  a  totally  different  meaning  from  presump- 
tion of  law;  and  refers  not  to  propositions,  but  to  arguments  —  not 
to  assuming,  but  inferring.  When  evidence  is  offered  which  can 
only  be  brought  to  bear  on  the  matter  at  issue  by  a  process  of  rea- 
soning, the  inference  is  termed  a  presumption  of  fact. '^  The  state- 
ment ou  which  this  inference  is  founded  is  termed  presumptive 
evidence.  Presumptive  evidence  forms  one  of  the  branches  of 
the  division  of  evidence  according  to  its  direct  or  indirect  bear- 
ing on  the  matter  at  issue.  When  the  witness  or  documents 
attests  the  very  fact  to  be  proved,  as   when  a  man  proves   the 


1  Mill,  vol.  V.  p.  610. 

2  Mr.  Pliillipps,  speaking  of  presumptions,  states  that  the  definition  of 
the  civilians  is  most  correct;  "  Prajsumtio  nihil  est  quam  nrgumentum  veri- 
simile,  communi  sensu  perceptum,  ex  eo  quod  plerumque  fit  aut  fieri 
intclligitur"  (Ev.  vol.  ii.  p.  156)  ;  which  he  translates  thus,  "A  presump- 
tion is  a  probable  inference,  which  our  common  sense  draws  from  circum- 
stances nsu.allv  occurring  in  such  cases."  Yet  in  another  place  he  speaks 
of  "true  presumptions"  (p.  1.5.5) ;  as  if  an  argument  could  be  true.  The 
following  remarks  are  attributed  to  Lord  Tentcnlen  in  Rex  v.  Burdett, 
4  15.  &  A.  161.  "A  presumption  of  any  fact  is  properly  an  inferring  of 
that  fact  from  other  facts  that  are  known  ;  it  is  an  act  of  reasoning;  and 
murk  nf  hunnn  knowledge  on  all  subjects  is  derived  from  this  source.  A  fact 
must  not  lie  inferred  irithout  premises  to  warrant  the  inference ;  but  if  no  fact 
could  thus  bo  ascertained  by  inference  in  a  court  of  law,  very  few  offenders 
could  be  brought  to  punishment."  It  is  dilTicult  to  believe  that  the  words 
in  italics  were  really  uttered  by  Lord  Tenterdeu. 


PRESUMPTIONS,  ETC.  647 

making  of  a  promissory  note  by  the  defendant,  who  denies  that  he 
made  it ;  when  a  man  states  that  he  was  stabbed  by  the  prisoner, 
who  is  indicted  for  the  stabbing;  or  tlie  date  of  a  man's  death  is 
proved  by  a  monumental  inscription,  or  an  entry  in  a  parish  book, 
the  evidence  is  said  to  be  positive  or  direct.  But  if  the  witness  or 
document  attests,  not  the  fact  to  be  proved,  but  something  from 
which  that  fact  may  be  inferred,  the  evidence  is  said  to  be  presump- 
tive or  indirect.^  A  presumption,  therefore,  in  this  sense,  or  a 
presumption  of  fact,  can  only  mean  an  argument  or  inference;  and 
presumptive  evidence  is  not  evidence  taken  by  itself,  but  only  be- 
cause, joined  to  some  other  general  proposition,  it  .tends  to  prove  a 
certain  conclusion.  Thus,  when  it  is  said  that,  where  a  person  was 
found  standing  over  a  wounded  man  with  a  bloody  sword  in  his 
hand,  there  is  a  presumption  (or  it  may  be  probably  inferred)  that 
the  one  stabbed  the  other;  the  fact  that  the  man  was  found  with  ^ 

1  The  distinction  between  positive  and  presumptive  evidence  is  most 
correctly  stated  by  Mr.  Bentliam.  "  Evidence  (says  he)  is  direct,  positive, 
immediate,  when  it  is  of  such  a  nature,  that  (admitting  its  accuracy)  it 
brings  witli  it  a  belief  of  the  tiling  to  he  proved.  Evidence  is  indirect,  or 
circumstantial,  when  it  is  of  such  a  nature  that  (admitting  its  accuracy)  it 
leads  to  a  belief  of  the  thing  to  be  proved  only  by  way  of  induction  (i.  e. 
deduction),  reasoning,  inference."  Treatise  on  Evidence  by  Dumont, 
186  n.  This  is  more  accurate  than  the  definition  of  Mr.  Starkie,  which 
excludes  all  direct  documentary  evidence.  "Evidence  (says  he)  is  direct 
and  positive  when  the  very  facts  in  dispute  are  communicated  by  those 
who  have  had  actual  knowledge  of  them  by  means  of  their  senses,  and 
where,  therefore,  the  jury  may  be  supposed  to  perceive  the  fact  through 
the  organs  of  the  witness."  1  Ev.  18.  Again  he  says  that  "it  frequently 
happens  that  the  fact  is  of  a  nature  imperceptible  by  the  senses,  and 
which  cannot  be  proved  but  by  presumptive  evidence."  lb.  19,  and  see 
vol.  ii.  1234.  An  entry  of  a  birth  or  marriage  in  a  parish  register  is  direct 
evidence  of  sucli  birth  or  marriage  ;  a  deed  is  direct  evidence  of  the  pur- 
pose for  which  it  was  executed :  though  these  facts  are  not  communicated 
by  witnesses  who  have  had  actual  knowledge  of  them  by  means  of  their 
senses.  In  numberless  instances  the  production  of  direct  documentary  evi- 
dence is  indispensable,  and  cannot  be  supplied  by  direct  oral  testimony. 
Thus  on  a  second  trial  for  certain  felonies,  a  certified  copy  of  the  record 
of  the  former  conviction  must  be  produced  ;  nor  would  the  evidence  of  a 
person  present  at  that  conviction  be  admissible.  It  is  plain  that  the  direct- 
ness or  indirectness  of  evidence  has  nothing  to  do  with  its  credibility.  A 
genuine  or  forged  deed,  a  true  or  perjured  witness,  may  equally  attest  the 
fact  at  issue,  or  a  fact  from  whicli  it  mav  be  inferred. 


548  APPENDIX  A. 

bloody  sword  has,  in  itself,  apart  from  its  consequence,  no  weight; 
but  it  tends  to  determine  the  question  at  issue,  who  stabbed  the 
wounded  man.  So,  if  the  date  of  a  man's  birth  be  at  issue,  and  it 
is  proved  that  he  died  in  a  certain  year  at  a  certain  age,  his  age 
and  the  time  of  his  death  are  in  themselves  indifferent;  but  they 
are  data  to  determine  the  year  of  his  birth. ^ 

As  in  this  kind  of  proof  the  fact  at  issue  is  not  attested,  but  only 
some  circumstances  from  which  that  fact  may  be  inferred,  pre- 
sumptive evidence  is  also  known  by  the  name  of  circumstantial 
evidence.  .  .  . 

If  the  foregoing  remarks  are  well  founded,  it  follows  : 
1.  That  the  two  members  of  the  above  division  of  presumptions, 
namely,  presumptions  of  law,  and  presumptions  of  fact,  are  not 
properly  opposed  to  each  other.  Presumption  means  reasoning  in 
the  one,  assumption  in  the  other.  Presumptions  of  law  are  propo- 
sitions; presumptions  of  fact  are  arguments.  Moreover,  presump- 
tions of  fact  belong  to  evidence,  or  statements,  made  by  witnesses 
or  contained  in  documents,  offered  to  a  court  of  justice:  legal  pre- 
sumptions belong  to  the  law  of  evidence,  or  the  rules  affecting  those 
statements.  They  cannot,  therefore,  be  species  of  a  common 
genus.  ^ 

^  The  facts  themselves  are  called  presumptions  by  C.  B.  Gilbert  (Evid. 
160);  but  the  common  usage  unquestionably  has  been,  and  is,  to  call  the 
inferences  from  them  presumptions.  Thus  it  is  commonly  said  that  we 
may  presume  from  such  circumstances  tliat  tbe  prisoner  is  guilty  or  iuuo- 
cent,  that  a  man's  intention  may  be  presumed  from  his  acts,  etc.  Thus 
Mr.  Stariiie  speaks  of  "  facts  and  circumstances,  upon  which  any  reasona- 
ble presumption  or  inference  may  be  founded  "  (1  Ev.  17)  ;  and  such  is  iiis 
constant  language.  The  usage  of  this  word  by  Mr.  Phillipps,  supported 
by  tlie  autliority  of  Lord  Tenterden,  was  pointed  out  in  a  former  note. 

2  If  the  argument  founded  on  the  presumption  of  law  was  itself  called 
a  presumption  of  law,  this  division  might  be  correct.  In  this  case,  an 
argument  founded  on  a  legal  rule  with  regard  to  prima  facie  evidence,  or 
the  onus  probandi,  would  be  a  jjresumption  of  law,  and  arguments  proving 
or  disi)roving  tlie  question  at  issue  would  be  presumptions  of  fact.  But 
this  does  not  appear  to  be  the  usual  sense  of  the  former  term.  For  in- 
stance, in  the  following :  "  Where  an  easement  has  been  peaceably  enjoi/ed 
for  twentji  i/ears,  a  //rant  is  presumed.  A.  B.  has  so  enjoyed  an  easement 
for  this  length  of  time;  it  mu.st,  therefore,  bo  presumed  that  ho  liad  a 
grant :  "  it  appears  tliat  tlio  major  jjnnnise  (marked  in  italics),  and  not  the 
wliolo  argument,  containing  tiie  matters  of  fact,  is  called  the  presumption 
uf  law. 


PRESUMPTIONS,  ETC.  549 

2.'  That  legal  or  artificial  presumptions  cannot  be  a  species  of 
indirect  evidence.^  A  fact  to  which  a  legal  presumption  will  apply, 
may  be  established  either  by  direct  or  indirect  evidence:  but  legal 
presumptions  themselves  cannot  be  a  subdivision  of  evidence,  much 
less  of  a  particular  kind  of  evidence.  The  very  author  who  has 
imagined  this  classification  furnishes  the  best  refutation  of  his  own 
scheme,  by  observing,  that  "  legal  presumptions  are  mere  arbitrary 
and  positive  rules  of  law,"  2  and  consequently  neither  arguments, 
nor  statements  made  by  witnesses  or  contained  in  documents. 

3.  That  presumptions  of  law  cannot  conveniently  be  treated 
together  under  a  separate  head,  but  ought  to  be  set  forth  under  the 
different  subjects  to  which  they  respectively  belong.  In  every  sub- 
ject or  issue  it  should  be  stated  whether  any  and  what  evidence 
will  conclude  the  opposite  party,  or  prevent  him  from  offering  evi- 
dence in  contradiction  or  explanation  (conclusive  presumptions  of 
law) ;  and  what  amount  of  evidence  will  be  sufficient  to  establish 
a  presumptive  or  prima  facie  case,  so  as  to  entitle  the  court  to  infer 
the  point  at  issue,  and  to  throw  on  the  other  side  the  burden  of 
proving  the  contrary  (disputable  or  rebuttable  presumptions  of 
law). 

4.  That  natural  presumptions,  or  presumptions  of  fact,  are  not 
properly  opposed  to  legal  or  artificial  presumptions;  but  are  argu- 
ments founded  on  presumptive  or  circumstantial  evidence,  which  is 
opposed  to  direct  or  positive  evidence.  Presumptive  evidence  being 
that  which  tends  to  prove  the  fact  at  issue,  or  from  which  the  fact 
at  issue  may  be  inferred :  while  direct  evidence  establishes  the  fact 
at  issue  itself  without  any  process  of  reasoning. 

5.  That  presumptions  of  fact,  or  circumstantial  proofs,  do  not 
properly  belong  to  the  law  of  evidence.  They  are  arguments,  prob- 
able, improbable,  or  certain,  involving  no  consideration  of  law, 
equally  valid  in  and  out  of  a  court  of  justice,  belonging  to  any 
subject-matter,  and  to  be  judged  by  the  common  and  received 
tests  of  the  truth  of  propositions  and  the  validity  of  arguments. 
"  Mere  natural  presumptions  (says  Mr.  Starkie)  are  derived  wholly 
by  means  of  the  common  experience  of  mankind,  from  the  course 
of  nature,  and  the  ordinary  habits  of  society.     Such  presumptions 

1  Mr.  Starkie,  vol.  i.  p.  446,  divides  evidence  into  direct  and  indi- 
rect ;  and  indirect  evidence  into  artificial  presumptions  and  natural 
presumptions. 

"  Vol.  i.  p.  448. 


550  APPENDIX  A. 

are  therefore  wholly  independent  of  the  system  of  laws  to  be  applied 

to  the  facts  when  established;  they  remain  the  same  in  their  nature 
and  operation,  whether  the  law  of  England,  or  the  code  of  Justinian, 
is  to  decide  upon  the  legal  eifect  and  quality  of  the  facts  when 
found."  And  in  another  place  he  justly  remarks,  that  "it  would 
be  a  vain  endeavor  to  attempt  to  specify  the  numerous  presump- 
tions with  which  the  knowledgeof  a  jury  conversant  in  the  common 
affairs  and  course  of  dealing  in  society,  necessarily  supplies  them ; 
it  is  obvious  that  such  presumptions  are  coextensive  with  the  com- 
mon experience  and  observation  of  mankind."  ^  Nevertheless  it  is 
highly  useful  in  treating  of  this  branch  of  law,  to  explain  the  na- 
ture of  circumstantial,  or  presumptive  evidence,  and  to  point  out  the 
generality  of  its  character  and  its  independence  of  legal  considera- 
tions. There  are  likewise  some  few  general  propositions  as  to  mat- 
ters of  fact,  universally  taken  for  granted  in  the  administration  of 
the  law,  and  approved  by  the  invariable  usage  of  judges,  which  may 
properly  be  referred  to  this  head.  Such  for  instance  is  the  rule  as 
to  the  evidence  of  an  accomplice,  which,  though  admissible  for  the 
prosecution,  is  always  ti'eated  as  liable  to  great  suspicion,  and 
juries  are  recommended  to  place  no  faith  in  it,  if  not  confirmed  in 
some  material  points  by  other  witnesses.  In  law  the  evidence  of 
accomplices  is  as  good  as  any  other  evidence ;  in  fact  it  has  been 
found  that  tlieir  testimony  is  often  unworthy  of  credit,  and  on  this 
experience  the  constant  practice  of  judges  is  founded. 

1  3  Stark.  Ev.  1245,  1254. 


APPENDIX  B. 

[Su^ra,  337  n.] 


THE   PRESUMPTION   OF   INNOCENCE   IN  CRIMINAL  CASES. 

The  following  pages  are  taken  from  a  discussion  of  the  subject  above 
named,  in  a  lecture  given  in  the  course  of  the  "  Storrs  Lectures  "  for  1896, 
by  the  author  of  the  present  treatise,  before  the  Law  School  of  Yale  Uni- 
versity. The  immediate  occasion  for  this  discussion  was  found  in  a 
remarkable  exposition  of  the  subject  by  Mr.  Justice  White,  put  forAvard 
in  the  opinion  of  the  Supreme  Court  of  the  United  States  in  Coffin  v. 
U.  S.,  156  U.  S.  4.32  (189.5).  The  paper  now  quoted  from,  after  briefly 
referring  to  the  very  harsh  nature  of  the  criminal  law  of  England  up  to 
the  earlier  part  of  this  centur}^  and  to  various  humane  maxims  of  the 
judges,  rules  of  procedure,  and  practical  adjustments  which  tended  to  coun- 
teract this  severity  and  to  make  it  endurable,  proceeded  as  follows  :  ^  — 

Always,  of  course,  there  was  operating  in  favor  of  the  accused 
the  sound  maxim  of  general  jurisprudence  that  the  plaintiff  or, 

1  In  a  note  it  had  been  remarked  :  "  Our  administration  of  the  criminal 
law  to-day,  in  a  period  when  the  substantive  law  is  merciful,  is  sadly  enfee- 
bled by  a  continuance  of  some  rules  and  practices  which  should  have 
disappeared  with  the  cruel  laws  they  were  designed  to  mitigate.  I  may 
refer  to  the  refusal  of  new  trials  to  the  government  in  some  classes  of 
cases,  to  the  absurd  extreme  to  which  the  rule  about  confessions  in  evi- 
dence is  sometimes  pressed,  to  the  strained  interpretation  of  the  prohibition 
of  ex  post  facto  laws  and  of  self-crimination,  to  the  continuation  of  techni- 
calities of  criminal  procedure  and  practice  which  have  lost  tlieir  reason  for 
existence,  and  to  a  superstitious  rigor  in  enforcing  these,  which  still  shows, 
itself.  In  following  English  precedents  in  such  matters,  we  forget  to  sup-^''' 
plement  them  by  that  saving  good  sense  which  appears  in  the  swiftness 
and  vigor  of  English  ndmiuistration.  If  we  follow  P^nglish  practices  we 
should  remember  tliat  tliey  are  all  meant  to  go  togetlier ;  they  may 
lose  their  wisdom  and  good  sense  when  separated.     Excellent  criticisms 


552  APPENDIX  B. 

rather,  the  party  who  seeks  to  move  the  court,  must  make  out  a 
reason  for  his  request.  This  rule  is  sometimes  expressed  in  tiie 
form  of  a  Yiresumiition,  presumitiu-  pro  nerjanti ;  or,  having  regard 
to  the  Latin  terms  for  plaintiff  and  defendant,  actor  2iv\d  reus, — 
presumkur  pro  reo.  That  is  a  maxim  of  policy  and  practical  sense; 
it  is  not  founded  on  any  notion  that  defendants  generally  are  free 
from  blame.  It  is  a  maxim  or  principle  that  saves  the  defendant 
by  the  mere  inertia  of  the  court,  if  the  plaintiff  does  not  make  out 
his  case.  This  maxim,  in  this  bare  form,  and  without  the  familiar 
additional  clause  as  to  the  greater  force  of  pei'suasion  in  criminal 
cases,  always  operated  for  the  accused.  It  is  probably  true  that  in 
the 'form  last  given  it  has  sometimes  been  mistranslated,  and  given 
a  special  application  to  criminal  cases,  as  if  7-eus  necessarily  meant 
a  person  charged  with  crime,  and  not  merely,  as  it  truly  does,  a 
defendant  in  any  soit  of  a  case.  The  operation  and  exact  scope  of 
this  maxim,  both  in  civil  and  criminal  cases,  was  very  neatly  ex- 
pressed by  the  (General  Court  (the  Legislature)  of  Massachusetts  so 
long  ago  as  1G57,  as  follows  :  "  Whereas,  in  all  civil  cases  depend- 
ing in  suit,  the  plaintiff  aflirmeth  that  the  defendant  hath  done 
him  wrong  and  accordingly  presents  his  case  for  judgment  and  sat- 
isfaction —  it  behovetli  the  court  and  jury  to  see  that  the  affirma- 
tion be  proved  by  sufficient  evidence,  else  the  case  must  be  found 
for  the  defendant;  and  so  it  is  also  in  a  criminal  case,  for,  in  the 
eye  of  the  law  every  man  is  honest  and  innocent,  unless  it  be  proved 
legally  to  the  contrary."  ^ 

In  this  country  and  in  recent  times,  much  emphasis  in  ci-iminal 
cases  has  been  put  on  the  presumption  of  innocence.  Always  and 
everywhere  great  emphasis  was  placed  on  the  rule  that  in  criminal 
cases  there  can  be  no  conviction  unless  guilt  is  established  with 
very  great  clearness  —  as  we  say  nowadays,  beyond  reasonable 
doubt.  In  civil  cases  it  is  enough  if  the  mere  balance  of  proba- 
bility is  with  the  ])laintiff,  but  in  criminal  cases  there  must  be  a 
clear,  heavy,  emphatic  preponderance. 

upon  one  aspect  of  this  sort  of  thing  may  bo  found  in  the  disseutiug 
oiiiiiioii  of  Peckham,  J.,  speaking  for  liiinself  and  Justices  Brewer  and 
W'liiU;,  in  Crain  r.  IJ.  S.,  \(\2  U.  S.  025,  (■)4(),  ()50.  He  justly  characterizes 
the  result.  :ii-ri\('d  al  in  tlic  opinion  of  the  court  as  most  deplorable." 
Otlur  recent  ojiinions  of  tho  same  court  in  criminal  cases,  such  as 
I5rani  r.  U.  S.,  108  U.  S.  !)'.V2,  may,  periiaps,  bo  thought  opeu  to  a  like 
condemnation. 

>   Itocurds  of  .Massaclmsotts,  iii.  434-435. 


PRESUMPTION  OF   INNOCENCE   IN  CRIMINAL  CASES.      5o3 

Now,  what  does  the  presumption  of  innocence  mean  ?  Does  it 
mean  anytliing  more  than  a  particular  application  of  that  general 
rule  of  sense  and  convenience,  running  through  all  the  law,  that 
men  in  general  are  takeu,  prima  facie  —  i.  e.,  in  the  absence  of  evi- 
dence to  the  contrary,  to  be  good,  honest,  free  from  blame,  pre- 
sumed to  do  their  duty  in  every  situation  in  life;  so  that  no  one 
need  go  forward,  whether  in  pleading  or  proof,  to  show  as  regards 
himself  or  another,  that  the  fact  is  so,  but  every  one  shall  have  it 
presumed  in  his  favor?     If  it  does,  what  is  its  meaning? 

Let  us  trace  the  use  of  this  maxim.  In  recent  years,  in  this 
country,  at  the  hands  of  heated  counsel  and  of  some  judges,  it  has 
been  given  an  extraordinary  stretch.  One  may  read,  for  instance, 
in  a  late  American  book  on  Evidence,  the  following  statement : 
"The  presumption  of  innocence  is  not  a  mere  phrase  without 
meaning;  it  is  in  the  nature  of  evidence  for  the  defendant;  it  is  as 
irresistible  as  the  heavens  till  overcome;  it  hovers  over  the  prisoner 
as  a  guardian  angel  throughout  the  trial;  it  goes  with  every  part 
and  parcel  of  the  evidence."  i  That  "purple  patch"  is  not 
marked  as  being  quoted  from  anybody;  but  in  reality,  I  believe, 
it  was  an  impassioned  utterance  of  Rufus  Choate,  one  of  the  most 
eloquent  and  successful  advocates  of  his  time.^  Such  a  passage  as 
that,  gravely  woven  into  the  text  of  a  legal  treatise,  may  show  the 
extent  to  which  the  presumption  of  innocence  has  been  overdone  in 
our  hysterical  American  fashion  of  defending  accused  persons. 
But  let  us  observe  it  in  its  earlier  history.  In  Bracton,  say  in 
12t)0,  we  find  it  in  the  most  general  form  —  de  quolihet  homine  pre- 
sumiiur  quod  sit  bonus  homo  donee  probetur  in  contrarium.^  In  a 
great  and  famous  continental  work  on  Presumptions,  by  jVIeno- 
chius,*  three  centuries  later,  we  have  the  simple  phrase:  "  Ilia  pre- 
siimptio  qua  dicimus  quemlihet  presumi  innocentem"  and  that  is  all 
the  emphasis  he  gives  it.  In  the  middle  of  the  next  century,  the 
General  Court  of  Massachusetts,  in  a  passage  partly  quoted  before, 
said,  simply  and  precisely,  "  It  behoveth  both  court  and  jury  to  see 
that  the  affirmation  be  proved  by  sufficient  evidence,  else  the  case 
must  be  found  for  the  defendant,  and  so  also  it  is  in  a  criminal 
case ;  for  in  the  eyes  of  the  law  every  man  is  honest  and  innocent 
unless  it  be  proved  legally  to  the  contrary.  In  criminal  prosecu- 
tions the  presumption  is  in  favor  of  the  defendant,  for  thus  far  it  is 

1  Braduer,  Evidence,  460.  2  Lawson,  Pres.  Ev.  433  n. 

3  Bractou,  193.  *  955,  col.  1,  16. 


554  APPENDIX  B. 

to  be  hoped  of  a]l  mankind,  that  they  are  not  guilty  in  any  such 
instances,  and  the  penalty  enhances  the  presumption."  i 

Very  little  is  said  about  it  before  this  century,  and  these  quota- 
tions fairly  illustrate  the  slight  emphasis  given  it,  and  the  part  it 
plays.  In  looking  through  the  arguments  of  Erskine  and  Curran 
and  other  great  lawyers  famous  for  their  defence  of  accused  per- 
sons, and  through  the  charges  of  the  court  given  to  juries  —  in  the 
last  century  and  the  early  part  of  this,  we  shall  find  very  little, 
indeed  almost  nothing,  about  the  presumption  of  innocence.  But 
a  great  deal  will  be  found,  a  very  great  emphasis  is  placed,  upon 
the  rule  that  a  party  must  be  proved  guilty  by  a  very  great  weight 
of  evidence.  That  is  the  important  thing.  And  I  think  it  will  be 
found  that,  in  English  practice,  down  to  our  time,  the  presumption 
of  innocence  —  except  as  a  synonym  for  the  general  principle  incor- 
porated in  that  total  phrase  which  expresses  the  rule  about  a  rea- 
sonable doubt,  namely,  that  the  accused  must  be  prorer/ guilty,  and 
that  beyond  a  reasonable  doubt  —  plays  a  very  small  part  indeed. 

Take,  for  example,  two  famous  English  cases  of  this  century. 
In  Despard's  case  -  tlie  Attorney-General  in  his  opening  argument 
said:  "  I  am,  however,  gentlemen,  ready  to  admit  what  no  doubt 
the  counsel  for  the  prisoner  would  be  glad  to  have  brought  for- 
ward to  your  attention,  that  the  great  depravity  which  is  required 
to  conceive  and  to  execute  a  crime  of  such  extensive  mischief,  so 
far  from  operating  to  create  any  prejudice  against  the  prisoner, 
ought  rather  to  give  him  a  fairer  claim  to  the  utmost  benefit  of 
that  indulgent  and  salutary  principle  of  our  law,  which  holds  every 
man  to  be  innocent  till  he  is  proved  to  be  guilty;  and  therefore,  he 
will  unquestionably  be  entitled  to  that  which  I  am  sure  he  will 
experience  at  your  hands,  that  the  charge  should  be  well  watched, 
that  the  evidence  should  be  well  sifted,  and  that  your  minds  should 
be  most  satisfactorily  convinced  of  his  guilt,  before  you  think  of 
pronouncing  a  verdict  against  him."  Serjeant  Best  (afterwards 
Chief  Justice  Best),  for  the  defence  (col.  437),  said  :  "  Gentlemen, 
having  made  these  observations,  I  am  persuaded  it  will  be  unneces- 
sary for  me  to  d(isire  you  to  do  all  that  men  can  do  to  divest  your- 
selves of  that  prejudice  which  you  feel  against  a  man  in  his  situation  ; 
to  do  all  that  which  the  Attorney-General  has  emphatically  and 
distinctly  told  you  to  do  — ^that  which  the  law  of  this  country  has 
told  you  to  do  — that,  without  wliich  there  can  be  no  liberty  exist- 
ing in  tliis  country  —  that  is,  to  presume  him  innocent  till  guilt  is 

1    UhisHjira.  '^  28  St.  Tr.  345,  363  (1803). 


PRESUMPTION  OF   INNOCENCE   IN  CRIMINAL  CASES.      555 

established  in  evidence ;  for,  until  his  guilt  be  made  out,  not 
merely  by  vague  and  unconfirmed  stories  told  by  suspicious  wit- 
nesses, but  by  that  species  of  evidence  which  is  required  by  juries 
in  cases  of  this  sort,  it  is  your  bounden  duty  to  presume  him  inno- 
cent." And,  again,  at  the  end  of  his  argument  (col.  458,  400): 
"  This  case  is  not  to  be  made  out  by  conjecture,  you  are  not  to 
condemn  unless  all  idea  of  innocence  be  completely  extinguished 
by  the  weight  of  the  evidence  that  has  been  produced  upon  the 
cause.  .  .  .  Remember  the  maxim  of  the  Attorney-General,  that 
'  in  proportion  as  the  crime  is  enoimous  so  ought  the  proof  to 
be  clear.'  " 

At  the  trial  of  William  Palmer  for  poisoning  in  1856,  the  counsel 
have  nothing  to  say  of  the  presumption  of  innocence.  And  this  is 
what  Lord  Campbell  says  in  his  charge:  ^  "  Gentlemen,  I  must  be- 
gin by  conjuring  you  to  banish  from  your  minds  all  that  you  may 
have  heard  before  the  prisoner  was  placed  in  that  dock.  .  .  . 
I  must  not  only  warn  you  against  being  influenced  by  what  you 
have  before  heard,  but  I  must  also  warn  you  not  to  be  influenced 
by  anything  but  by  the  evidence  which  has  been  laid  before  you 
with  respect  to  the  particular  charge  for  which  the  prisoner  is  now 
arraigned.  .  .  .  By  the  practice  in  foreign  countries  it  is  allowed 
to  raise  a  probability  of  the  prisoner  having  committed  the  crime 
with  which  he  is  charged  by  proving  that  he  has  committed  other 
offences  —  by  showing  that  he  is  an  immoral  man,  and  that  he  is 
not  unlikely,  therefore,  to  have  committed  the  offence  with  which 
he  is  charged.  That  is  not  the  case  in  this  country.  You  must 
presume  that  a  man  is  innocent  until  his  guilt  is  established,  and 
his  guilt  can  only  be  established  by  evidence  directly  criminating 
him  on  the  charge  for  which  he  is  tried.  .  .  .  Unless  by  the  evi- 
dence for  the  prosecution  a  clear  conviction  has  been  brought  to 
your  minds  of  the  guilt  of  the  prisoner,  it  is  your  duty  to  acquit 
him.  You  are  not  to  convict  him  on  suspicion,  even  on  strong  sus- 
picion. There  must  be  a  strong  conviction  in  your  minds  that  he 
is  guilty  of  this  offence,  and  if  you  have  any  reasonable  doubt  you 
will  give  him  the  benefit  of  that  doubt." 

That  is  the  simple,  intelligible,  plain  way  in  which  the  presump- 
tion of  innocence  is  dealt  with  in  important  cases  in  England. 
The  prisoner  is,  indeed,  carefully  protected,  but  his  bulwark  is  not 
found  in  any  emphatic  or  strained  application  of  the  phrase  or  the 
fact  of  a  presumption  of  innocence. 

1  Palmer's  Trial,  166. 


556  APPENDIX   B. 

A  Scotch  case  in  1817  ^  should  now  be  mentioned.  We  shall  see 
hereafter  the  use  made  of  it  in  Coffin  v.  U.  S.  One  Andrew 
McKinley  was  indicted  for  administering  false  oaths.  There  was 
a  question  as  to  the  true  interpretation  of  the  oaths,  and  the  coun- 
sel for  the  accused  insisted  upon  his  right  to  have  a  favorable  con- 
struction put  on  them.  He  said  (col.  283)  :  "  In  all  criminal  cases 
everything  must  be  strictly  interpreted  in  favor  of  the  accused  and 
against  the  prosecutor,"  and  other  similar  things.  The  Advocate 
Depute  replied  (col.  334)  :  "  A  great  deal  was  said  about  the  pre- 
sumption in  favor  of  the  innocence  of  the  panel.  This  is  a  common 
topic  of  declamation,-  but  I  never  could  understand  the  presump- 
tion of  the  innocence  of  a  panel.  The  onus  prohandi  lies  on  the 
prosecutor,  and  he  must  make  out  his  -case,  but  I  see  no  occasion 
for  a  presumption  of  atiy  sort,  but  what  arises  fi'om  a  want  of  con- 
trary proof.  And  I  know  no  such  doctrine  in  any  work  on  the 
criminal  law  of  Scotland."  The  defence  (col.  438-439)  declared 
that  "  this  was  the  very  first  time  in  a  criminal  case,"  that  the 
existence  of  a  presumption  of  innocence  had  been  denied,  and 
referred  to  the  "very  obvious  and  common-place  rule  of  law  that 
in  all  trials  for  crimes  there  is  a  presumption  in  favor  of  innocence 
which  runs  through  the  whole  proceedings  and  is  applied  to  the 
indictment,  to  the  proof,  to  the  verdict."  In  deciding  the  question 
then  under  discussion  in  favor  of  the  prosecution,  Lord  Pitmilly 
said  (col.  518)  that  if  anything  were  doubtful  about  the  construc- 
tion of  tlie  oaths  "  the  presumption  must  be  in  favor  of  innocence. 
.  .  .  We  are  not  to  presume  guilt  because  the  prosecutor  alleges 
guilt  .  .  .  and  until  guilt  is  estiiblished,  we  must  hold  the  pre- 
sumption to  be  in  favor  of  innocence."  Lord  Justice  Clerk  said 
(col.  538),  that  if  the  oath  were  doubtful  he  was  bound  "  to  let  the 
doubt  lean  in  favor  of  the  accused."  None  of  the  otlier  judges 
commented  on  this  subject  except  the  single  dissenting  judge. 
Lord  (allies.  He  said  (col.  50())  in  an  emphatic  passage  that,  to 
be  sure,  he  himself  suspected  tliat  thii  oath  was  as  bad  as  it  was 
conten<led.  "But,"  he  went  on,  "the  presumption  in  favor  of 
innocence  is  not  to  be  redargued  by  mere  suspicion.  .  .  .  The 
public  prosecutor  treats  this  too  lightly.  He  seems  to  think  that 
the  law  entertains  no  such  presumption  of  innocence.     I  cannot 

1   McKinley 's  case,  .33  St.  Tr.  27r>. 

-  Tlio  reader  will  olwcrvo  tliiit  lliis  is  said  of  Scotlaud  aud  not  of 
Diiirlaiid. 


PRESUMPTION  OF  INN0CP:NCE   IN  CRIMINAL  CASES.     557 

listen  to  this.  I  conceive  that  this  presumption  is  to  be  found  in 
every  code  of  hxw  which  has  reason  and  religion  and  humanity  for 
a  foundation.  It  is  a  maxim  which  ought  to  be  inscribed  in  indel- 
ible characters  in  the  heart  of  every  judge  and  juryman,  and  I  was 
happy  to  hear  from  Lord  Ilermand  that  he  is  inclined  to  give  full 
effect  to  it.i  To  overturn  this  there  should  be  legal  evidence 
of  guilt,  carrying  home  a  degree  of  conviction  short  only  of 
certainty." 

It  will  be  noticed,  as  I  said,  that  this  is  a  Scotch  case,  and  Lord 
Gillies  a  dissenting  judge.  The  Scotch  law  is  not  the  common  law, 
and  in  Scotch  courts  the  Continental  refinements  about  presump- 
tions are  far  more  familiar  than  in  England.  The  handling  of  the 
matter  in  this  case  is  indeed  very  simple,  and  not  at  all  strained, 
but  the  case  is  not  an  authority  in  English  law,  or  at  all  indicative 
of  any  emphasis,  even  in  the  Scottish  courts,  in  recognizing  the 
presumption  of  innocence. 

The  English  conception  of  the  presumption  of  innocence  has 
been  expressed  by  a  writer  jjeculiarly  learned  in  the  criminal  law, 
who  had  devoted  much  time  to  the  study  and  exposition  of  it,  and, 
as  a  judge,  was  long  engaged  in  administering  it.  Fitzjames 
Stephen,  in  the  second  edition  of  his  "  General  View  of  the  Crimi- 
nal Law  of  England,"  published  in  1890,  when  the  author  had  been 
eleven  years  a  judge  of  the  Queen's  Bench  Division,  says  (p.  183)  : 
"  I  may  mention  the  general  presumption  of  innocence  which, 
though  by  no  means  confined  to  the  criminal  law,  pervades  the 
whole  of  its  administration.  .  .  .  [Here  he  quotes  from  his  '  Di- 
gest of  Evidence'  the  Article  which  is  given  below.]  This  is 
otherwise  stated  by  saying  that  the  prisoner  is  entitled  to  the  bene- 
fit of  every  reasonable  doubt.  The  word  '  reasonable  '  is  indefi- 
nite, but  a  rule  is  not  worthless  because  it  is  vague.  Its  real 
meaning,  and  I  think  its  practical  operation,  is  that  it  is  an 
emphatic  caution  against  haste  in  coming  to  a  conclusion  adverse 
to  a  prisoner.  It  may  be  stated  otherwise,  but  not,  I  think,  more 
definitely,  by  saying  that  before  a  man  is  convicted  of  a  crime 
every  supposition  not  in  itself  improbable,  which  is  consistent  with 
his  innocence,  ought  to  be  negatived."  In  his  "  Digest  of  Evi- 
dence," Article  94,  under  the  title  "Presumption  of  Innocence," 
he   presents    as   its    definition,    this-.     "If   the   commission    of   a 

1  All  that  Lord  Hermaud  is  reported  as  saying  on  tliis  matter  is  (col. 
499)  th.it  "  Where  there  is  a  possildlity  of  a  favorable  construction  for  the 
panel,  it  ever  will  receive  effect  from  me." 


558  APPENDIX   B. 

crime  is  directly  in  issue  in  any  proceeding  criminal  or  civil,  it 
must  be  proved  beyond  reasonable  doubt.  The  burden  of  proving 
that  any  person  has  been  guilty  of  a  crime  or  wrongful  act  is  on  the 
person  who  asserts  it."  i 

This  mode  of  stating,  or  indicating  the  substance  of  the  presump- 
tion of  innocence  as  applied  in  criminal  proceedings,  is  more  or 
less  found  in  our  own  decisions.  Obviously,  it  is  in  a  very  compact 
form;  and  it  seems  plain  that  such  a  statement  adds  something  to 
tlie  mere  presumption  of  innocence,  for  that,  pure  and  simple,  says 
notliing  as  to  the  quantity  of  evidence  or  strength  of  persuasion 
needed  to  convict.  But  as  it  is  stated  above,  the  rule  includes  two 
things  :  First,  the  presumption ;  and  second,  a  supplementary 
proposition  as  to  the  weight  of  evidence  which  is  required  to  over- 
come it :  the  whole  doctrine  when  drawn  out  being,  first,  that  a 
person  who  is  charged  with  crime  must  be  proved  guilty;  that, 
according  to  the  ordinary  I'ule  of  procedure  and  of  legal  reasoning, 
presumitur  pro  reo,  i.  e.,  neganti .  so  that  the  accused  stands  innocent 
until  he  is  proved  guilty  ;  and,  second,  that  this  proof  of  guilt  must 
displace  all  reasonable  doubt. 

As  regards  the  simple,  just,  unambiguous  rule,  which,  in  requir- 
ing proof,  thus  emphasizes  the  weight  of  evidence  and  the  strength 
of  persuasion  necessary  to  make  it  out  in  a  criminal  case,  this  rule, 
thus  appearing  to  Stephen  to  embody  and  to  be  identified  with  the 
presumption  of  innocence  as  applied  to  criminal  cases,  is  a  very 
ancient  one.  We  read  in  the  Corpus  Juris,  as  far  back  as  the  fourth 
century,  a  direction  which  is  attributed  to  several  emperors  in  suc- 
cession :  "  Let  all  accusers  understand  that  in  bringing  up  a  matter 
for  judfrment  it  must  be  supported  by  fit  witnesses,  vel  apertissimis 
documenlis  vel  indiciis  ad  prohntionem  indubitatis  el  luci  clariorihus.^ 
This  passage  was  cited  for  the  accused  in  a  Scotch  criminal 
ease  of  piracy  in  1705  ;  ^  and  scraps  of  it  have  lingered  long  in 
our  own  books;  as  when  Coke  in  his  Third  Institute,  76,  in  speak- 
ing of  treasons,  says  :  "  There  should  be  a  substantial  proof  in  a 
cause  so  criminal  y^here prohafiones  oportent  esse  luce  da r lores  ;  "  and 

1  This  article  lias  :i  sci-oiiil  p;ii-ai;niiili  wliicli  nnis  thus:  "The  Imrilen 
of  proving  that  any  person  has  been  gnilty  of  a  crime  or  wrongful  act  is 
on  the  ])crs()ii  who  asserts  it,  whether  the  connuission  of  such  act  is  or  is 
not  directly  in  issue  in  the  action."  The  doctrine  here  expressed  is  proba- 
bly not  the  law  in  most  parts  of  this  country. 

2  Cod.  iv.  i;»,  2.'). 

8  Captain  CJreen's  case,  IJ  St.  'I"r.  ll'.IK,  \24^). 


PRESUxMPTION  OF  INNOCENCE   IN  CRIMINAL  CASES.     559 

again,  of  treason  and  felony,^  that  the  reason  for  not  allowing 
counsel  to  the  accused  is  that,  "the  testimonies  and  proofs  of 
offence  ought  to  be  so  clear  and  manifest  as  there  can  be  no  defence 
of  it;  "  and  still  again,  he  speaks  of  the  rule  of  law  quod  in  crimi- 
nalibus  probationes  dehent  esse  luce  clarioi'es."  "^ 

This  rule  iu  England  was  the  one  constantly  pressed  ;  while,  as 
1  have  said,  little  or  no  mention  was  made,  in  terms,  of  a  presump- 
tion of  innocence.  This  was  the  chief  rule  urged  in  behalf  of 
accused  persons  by  the  great  advocates  in  the  last  century  and 
later,  in  such  cases  as  those  of  Lord  George  Gordon,  Hardy,  Home 
Tooke,  and  others.  MacNally,  in  his  "  Treatise  on  Evidence  in 
Criminal  Cases,"  at  the  beginning  of  this  century,  saying  little  of 
a  presumption  of  innocence,  lemarks  :  "  It  may  also  at  this  day  be 
considered  as  a  rule  of  law  that  if  the  jury  entertain  a  reasonable 
doubt  they  should  deliver  the  prisoner." 

There  is  no  need  to  trace  it  further,  for  no  one  doubts  that  in 
one  form  or  another  it  has  always  continued  to  be  a  great  and 
recognized  rule.  It  has,  in  our  inherited  system,  a  peculiarly  im- 
portant function,  that  of  warning  our  untrained  tribunal,  the  jury, 
against  being  misled  by  suspicion,  conjecture,  and  mere  appear- 
ances. In  saying  that  the  accused  person  shall  be  proved  guilty,  it 
says  that  he  shall  not  be  presumed  guilty ;  that  he  shall  be  con- 
victed only  upon  legal  evidence,  not  tried  upon  prejudice ;  that 
he  shall  not  be  made  the  victim  of  the  circumstances  of  suspicion 
which  surround  him,  the  effect  of  which  it  is  always  so  difficult  to 
shake  off,  circumstances  which,  if  there  were  no  emphatic  rule  of 
law  upon  the  subject,  would  be  sure  to  operate  heavily  against  him ; 
the  circumstances,  e.  g.,  that  after  an  investigation  by  the  grand 
jury  he  has  been  indicted,  imprisoned,  seated  in  the  prisoner's 
dock,  carried  away  handcuffed,  isolated,  watched,  made  an  object 
of  distrust  to  all  that  behold  him.  He  shall  be  convicted,  this  rule 
says,  not  upon  any  mere  presumption,  any  taking  matters  for 
gi-anted  on  the  strength  of  these  circumstances  of  suspicion  ;  but 
he  shall  be  proved  guilty  by  legal  evidence,  and  by  legal  evidence 
which  is  peculiarly  clear  and  strong  —  clear  beyond  a  reasonable 
doubt.  The  whole  matter  is  summed  up  and  neatly  put  by  Chief  ~] 
Justice  Shaw  in  Webster's  case :  ^  "  The  burden  of  proof  is  upon 
the  prosecutor.  All  the  presumptions  of  law  independent  of  evi- 
dence are  in  favor  of  innocence,  and  every  person  is  presumed  to 

1  Co.  3d  Inst.  29,  137.  ^  lb.  210. 

3  5  Cush.  295,  320. 


560  APPENDIX  B. 

bo  innocent  until  he  is  proved  guilty.  If  upon  such  proof  there 
is  reasonable  doubt  remaining,  the  accused  is  entitled  to  the  benefit 
of  it  by  an  acquittal." 

We  observe,  in  this  form  of  statement,  that  the  general  rule  of 
policy  and  sense  requiring  that  all  persons  shall  be  assumed,  in  the 
absence  of  evidence,  to  be  free  from  blame,  —  appears  in  the  crim- 
inal law,  on  grounds  of  fairness  and  abundant  caution,  in  an  em- 
phatic form,  as  the  presumption  of  innocence,  and  it  is  there 
coupled  with  a  separate  special  rule  as  to  the  weight  of  evidence 
necessary  to  make  out  guilt. 

As  to  the  real  nature  of  the  rule  about  a  presumption  of  innocence, 
an  important  intimation  is  contained  in  Chief  Justice  Shaw's 
phrase  that,  '•  All  the  piesuniptions  of  law  independent  of  evidence 
are  in  favor  of  innocence."  That  appears  to  be  accurate  and 
exact.  The  presumption  is  "  independent  of  evidence,"  being  the 
same  in  all  cases;  and  in  all  operating  indiscriminately,  in  the 
same  way,  and  with  equal  force.  On  what  is  it  founded  ?  On 
the  fact  that  men  in  general  do  not  commit  crime?  On  what  is 
the  presumption  of  sanity  founded?  On  the  fact  that  men  in  gen- 
eral are  sane?  Perhaps  so,  as  a  legislative  reason,  so  to  speak,  or 
one  of  the  reasons.  But  the  rule  itself  is  a  different  thing  from  the 
grounds  of  it,  and  when  we  speak  of  the  presumption  of  innocence 
or  of  sanity  we  are  talking  of  a  legal  rule  of  presumption,  a  legal 
position,  and  not  of  the  facts  which  are  the  basis  of  it. 

It  is  important  to  observe  this,  because,  by  a  loose  habit  of 
speech,  the  presumption  is  occasionally  said  to  be,  itself,  evidence, 
and  juries  are  told  to  put  it  in  the  scale  and  weigh  it.  Greenleaf, 
in  a  single  phrase,  in  the  first  volume  of  his  treatise  on  Evidence, 
section  tliirty-four,  a  phrase  copied  occasionally  into  cases  and  text- 
books, has  said:  "This  legal  presumption  of  innocence  is  to  be 
regarded  by  the  jury  in  every  case  as  matter  of  evidence,  to  the 
benefit  of  which  the  party  is  entitled."  i     This  statement  is  con- 

J  Compare  tlie  remarks  of  Clifford,  J.,  in  Lilieiitlial's  Tobacco  v.  U.  S., 
97  U.  S.  237,  267,  wliere  an  opinion  marked  by  very  loose  thinking  is  para- 
])hrasiiig  some  unsupported  expressions  of  Wharton  on  Evidence.  It  is 
easy  to  lie  misled  iiy  the  figure  of  speech  about  turning  the  scale.  Wiien 
(irofriiloaf  (I'^v.  iii.  s.  29),  in  coiiniKMiting  on  the  difference  between  crimi- 
nal and  civil  cases  ns  to  tlu^  (piantity  of  evidence  rc(|uired,  after  saying 
tliat  in  tlie  latter  it  is  enougii  if  the  evidonco  ])ropoii(I('ratos, adds  that  "in 
crimiiia!  trials,  the  ])arty  accused  is  entitled  to  tlio  l)oneiit  of  tlie  legal  pre- 
sninj)iii)n  in  favor  of  innoci'nce,  wliicli  in  donlilfnl  cases  is  always  sufiicient 


PRESUMPTION  OF  INNOCENCE  IN  CRIMINAL  CASES.     561 

demned  by  the  editor  of  the  last  edition  of  Greenleaf's  book ;  and 
in  Taylor  on  Evidence,  the  great  English  handbook,  which  fol- 
lowed Greenleaf's  text  closely,  this  passage  is  omitted,  and  always 
has  been  omitted.  In  the  latter  part  of  Greenleaf's  Evidence,  Vol- 
ume III.,  which  deals  specifically  with  criminal  cases,  it  does  not 
appear.  It  is  denied  also  by  Chamberlayue,  the  careful  editor  of 
the  works  on  Evidence  of  Best  and  Taylor. 

What  can  such  a  statement  as  this  mean  —  that  the  presumption 
is  to  be  regarded  as  evidence?  Is  it  meant  that  on  grounds  of 
natural  presumption  or  inference,  innocence  is  ordinarily  found  in 
criminal  cases?  As  to  that,  if  one  would  see  the  true  operation  of 
natural  inference,  and  natural  presumption  in  criminal  cases,  and 
would  appreciate  how  entirely  artificial,  how  purely  a  matter  of 
policy  the  whole  rule  is  which  bids  a  jury  on  the  trial  to  assume 
innocence,  let  him  turn  his  attention  to  the  action  of  courts  at 
other  stages  than  the  trial.  In  State  v.  Mills,  2  Uev.  421  (1830), 
as  illustrating  another  point  then  under  discussion,  the  court 
(Ruffin,  J.)  said:  "After  bill  found,  a  defendant  is  presumed  to 
be  guilty  to  most,  if  not  to  all  purposes,  except  that  of  a  fair  and 
impartial  trial  before  a  petit  jury.  This  pi-esumption  is  so  strong, 
that,  in  the  case  of  a  capital  felony  the  party  cannot  be  let  to  bail." 
In  Ex  parte  Ryan,  44  Cal.  555  (1S72),  a  party  indicted  for  attempt- 
ing to  murder  a  policeman  had  been  held  in  the  lower  court  in 
$15,000  bail.  On  an  application  to  reduce  the  bail  the  court 
(Wallace,  C.  J.)  refused,  saying:  "  I  am  bound  to  assume  guilt 
for  the  purposes  of  this  proceeding,  for  certainly  I  have  no  means 
of  determining  his  innocence,  to  say  nothing  of  the  principle  of  law 
that,  except  for  the  purposes  of  a  fair  and  impartial  trial  before  a 
petit  jury,  the  presumption  of  guilt  arises  against  the  prisoner  on 
finding  the  indictment."  In  the  case  of  In  the  matter  of  Henry 
Alexander,  59  Mo.  598  (1875),  a  capital  case,  the  question  was, 
after  repeated  trials  and  disagreements  of  the  jury,  whether  bail 
should  be  allowed.     The   Constitution  of  Missouri,  it  was  held, 

to  turn  the  scale  in  his  favor  ;  "  and  that  it  is  a  rule  of  criminal  law  that 
the  guilt  of  the  accused  must  be  fully  proved,  and  then  goes  on  to  give  the 
rule  about  reasonable  doubt  —  it  seems  fairly  clear  that  he  is  not  thinking 
of  the  presumption  of  innocence  itself,  as  placed  in  the  scale,  but  rather  of 
the  rule  requiring  evidence  beyond  a  reasonable  doubt,  as  being  placed 
there  ;  and,  of  course,  that  is  not  so  much  glutting  evidence  into  one  scale 
as  saying  what  evidence  shall  be  put  into  tlie  otlier.  It  is  this  rule  that 
"turns  the  scale,"  and  in  this  way. 


562  APPENDIX   B. 

allowed  bail,  except  "  when  the  proof  was  evident  or  the  pre- 
sumption great."  In  allowing  it  in  this  case  the  court  (Wag- 
ner, J.)  said  :  "  The  indictment  furnishes  a  strong  presumption  of 
guilt.  .  .  .  Hence,  in  all  such  cases,  there  must  be  facts  and  cir- 
cumstances which  counteract  or  overcome  this  presumption,  before 
bail  will  ever  be  admissible."  The  same  doctrine  was  held  in 
State  V.  ^Madison  County  Court,  136  Mo.  323,  in  which  the  court 
(Burgess,  J.)  quotes  with  approval  the  lauguage  of  the  Supreme 
Court  of  California  in  People  v.  Tinker,  19  Cal.  539,  that  "It  [the 
indictment]  creates  a  presumption  of  guilt  for  all  purjjoses  except 
the  trial  before  the  petit  jury."  These  cases  are  the  true  ones 
to  illustrate  the  operation  of  natural  presumption  and  natural  in- 
ference. Yet,  at  the  trial  all  such  natural  probabilities  are  held 
off;  the  board  is  swept  clear  of  these,  and  the  accused,  while  kept 
well  guarded,  a  prisoner,  is  yet  to  be  treated  as  if  no  incriminating 
fact  existed.  His  record,  by  a  dead  lift  of  legal  policy,  is  now  pre- 
sented as  clean  and  white.  Whatever  of  wrong  or  guilt  is  to  be 
inscribed  on  it  must  be  the  result  of  legal  evidence  now  presented 
to  the  jury. 

The  effect  of  the  presumption  of  innocence,  so  far  from  being 
that  of  furnishing  to  the  jury  evidence  —  i.  e.,  probative  matter, 
the  basis  of  an  inference  —  is  rather  the  contrary.  It  takes  posses- 
sion of  this  fact,  innocence,  as  not  now  needing  evidence,  as  already 
established  prima  facie,  and  says  :  "  Take  that  for  granted.  Let 
him  who  denies  it,  go  forward  with  his  evidence."  In  criminal 
cases  if  the  jury  were  not  thus  called  off  from  the  field  of  natural 
inference,  if  they  were  allowed  to  range  there  wherever  mere  reason 
and  human  experience  would  carry  them,  the  whole  purpose  of  the 
presumption  of  innocence  would  be  balked.  For  of  the  men  who 
are  actually  brought  up  for  trial,  probably  the  large  majority  are 
guilty.  In  inquiring  lately  of  a  prosecuting  officer  in  Massachu- 
setts for  the  statistics  about  this,  he  replied  that  out  of  every  one 
hundred  persons  indicted  for  crime  in  his  jurisdiction,  twenty  were 
tried  and  ac(iuitted,  twenty  pleaded  guilty,  and  sixty  were  tried 
ami   convicted.'     Now  the  presumption  of    innocence  forbids   the 

'  III  Kngliind  it  was  neatly  .said,  a  few  years  ago,  by  a  learned  and  accu- 
rate lawyer  :  "  lyiiw  prcisiinies  tiiat  the  ])ris()ner  is  innocent  until  lie  is 
found  giiiiiy,  lint  it  were  well  to  wager  four  to  one  that  the  jury  will  bo 
satisfied  of  lii.s  guilt.  In  188.3  there  were  ll,.'i47  per.sons  found  guilty 
against  2,72.'}  found  not  guilty."  Maitlaud.  Justice  and  Police.  Macmil- 
lan  &  Co.,  1885. 


PRESUMPTION  OF  INNOCENCE  IN  CRIMINAL  CASES.     563 

consideration  of  such  probabilities  as  are  here  suggested  and  says 
simply  this:  "It  is  the  right  of  this  man  to  be  convicted  upon 
legal  evidence  applicable  specifically  to  him.  Start  then  with  the 
assumption  that  he  is  innocent,  and  adhere  to  it  till  he  is  proved 
guilty.  He  is  indeed  under  grave  suspicion,  and  it  is  your  duty  to 
test  and  fairly  to  weigh  all  tlie  evidence  against  him  as  well  as  for 
him.  But  he  is  not  to  suffer  in  your  minds  from  these  suspicions 
or  this  necessity  of  holding  him  confined  and  trying  him;  he  is  to 
be  aifected  by  nothing  but  such  evidence  as  the  law  allows  you  to 
act  upon.  For  the  purposes  of  this  trial  you  must  take  him  to  be 
an  innocent  man,  unless  and  until  the  government  establishes 
his  guilt." 

It  may  be  asked  :  If  then  a  presumption  be  not  evidence,  how 
can  you  know  when  it  is  overcome  ?  That  depends  on  the  nature  of 
the  case.  It  is  the  office  of  a  presumption,  as  such,  to  fix  the  duty 
of  going  on  with  argument  or  evidence,  on  a  given  question ;  and 
is  only  that.  As  to  how  much  evidence  is  to  be  produced,  that  is 
another  matter.  In  criminal  cases  the  rule  is  fixed  that  the  evi- 
dence must  negative  all  reasonable  doubt;  nothing  else  will  make 
a  case  which  the  defendant  need  meet.  Sometimes  the  presump- 
tion calls  only  for  evidence  enough  to  put  the  question  really  into 
the  case,  to  make  it  really  a  question ;  sometimes  for  a  full  prima 
facie  case.  But  in  no  case  is  there  a  weighing,  a  comparison  of 
probative  quality,  as  between  evidence  on  one  side  and  a  presump- 
tion on  the  other. 

While  then  it  is  true  that  a  presumption  may  count  as  evidence, 
and  be  a  substitute  for  evidence,  in  the  sense  that  it  will  make  a 
prima  facie  case  for  him  in  whose  favor  it  operates,  and  whiL'  it  is 
true  that  the  facts  on  which  a  presumption  is  grounded  may  count 
as  evidence,  the  presumption  itself,  i.  e.,  the  legal  rule,  conclusion, 
or  position,  cannot  be  evidence.  This  question  was  neatly  and 
accurately  dealt  with  by  the  court  in  Lisbon  v.  Lyman,  49  N.  H. 
553  (1870).  On  an  issue  as  to  the  emancipation  of  a  minor,  the 
jury  were  instructed  "that  there  was  a  presumption  that  children 
under  twenty-one  are  not  emancipated;  that  the  presumption  was 
not  conclusive,  and  the  fact  might  be  shown  by  proof  to  be  other- 
wise ;  but  that  in  deciding  what  the  fact  was,  the  jury  would  take 
this  presumption  into  account,  as  one  element  of  evidence,  and 
weigh  it  in  connection  with  all  the  testimony."  Doe,  J.,  for  the 
court,  said:  "  The  burden  was  on  the  plaintiff  to  prove  that  when 
the  town  was  divided,  the  last  dwelling  place  of  Volney  was  in  the 


56i  APPENDIX  B. 

defendant's  territory.  The  plaintiff  claimed,  that  Volney,  though 
a  minor,  had,  by  emancipation,  acquii-ed  a  right  to  have  a  home  of 
his  own,  free  from  the  control  of  his  father.  The  emancipation  of 
Volney  was  set  up  as  an  affirmative  and  essential  part  of  the  plain- 
tiffs case  ;  and  in  that  view  it  was  necessary  for  the  plaintiff  to 
prove  it.  Without  any  evidence,  or  with  evidence  equally  bal- 
anced, on  that  point,  emancipation  would  not  be  proved.  The 
burden  of  proof  was  on  the  plaintiff,  and  this  burden  was  not  sus- 
tained unless  the  plaintiff  proved  it  by  a  preponderance  of  all  the 
evidence  introduced  on  the  subject.  But  it  was  not  necessary  for 
the  plaintiff  to  j)roduce  anything  more  than  the  slightest  prepon- 
derance ;  or  to  produce  a  preponderance  of  anything  but  evidence. 
...  A  legal  presumption  is  a  rule  of  law  —  a  reasonable  prin- 
ciple, or  an  arbitrary  dogma  —  declared  by  the  court.  There  may 
be  a  difficulty  in  weighing  such  a  rule  of  law  as  evidence  of  a  fact, 
or  in  weighing  law  on  one  side  against  fact  on  the  other.  And 
if  the  weight  of  a  rule  of  law  as  evidence  of  a  fact,  or  as 
counterbalancing  the  evidence  of  a  fact,  can  be  compreliended, 
there  are  objections  to  such  a  use  of  it.  ...  A  legal  presumption 
is  not  evidence.  .  .  .  The  presumption  against  the  freedom  of 
minors  was  not  an  element  of  evidence;  could  not  be  weighed  as 
evidence,  and  it  does  not  appear  that  any  use  could  rightfully  be 
made  of  it  in  the  case.  It  was  put  into  the  scale  with  the  defend- 
ant's evidence,  where  it  would  be  likely  to  mislead  the  jui'y,  and 
give  the  defendant  a  material  advantage  to  which  he  was  not 
entitled."! 

1  For  a  different,  and,  as  T  must  think,  a  mistaken  exposition  of  the  sub- 
ject, see  Barber's  Api)oal,  03  Conn.  393,  403,  406  (1893).  lu  a  probate 
appeal  involving  the  question  of  testamentary  capacity,  after  a  verdict 
against  the  will,  it  appeared  that  the  charge  of  the  judge  below  was 
objected  to  liy  the  proponents  as  "  confusing  and  contradictory."  Among 
other  tilings  the  judge  had  said  to  the  jury  :  "  If  when  the  whole  matter  is 
before  vou  on  the  evidence  given  on  both  sides,  it  is  left  uncertain  whether 
or  not  the  testator  was  of  sound  mind,  then  .  .  .  the  will  should  not  be 
sustained.  In  the  course  of  the  trial  the  balance  of  evidence  may  fluctuate 
from  one  side  to  the  other,  but  the  burden  of  proof  remains  where  it  was 
at  the  outset,  upon  the  advocates  of  the  will,  and,  unless  at  the  close  of 
the  trial  the  balance  is  with  the  advocates  of  the  will,  unless  the  beam  of 
the  scale  tips  down  on  the  side  of  the  advocates  of  the  will,  they  must 
fail."  TIio  SnprrMnc  Court  (Fcnn,  J.)  rovorsod  the  judgment  below,  and 
in  the  course  of  a  difficult  and  unsatisfactory  exposition  of  the  meaning 


PRESUMPTION   OF  INNOCENCE   IN  CRIMINAL  CASES.      oG5 

Upon  the  whole,  then,  it  seems  to  be  true  that  tlie  presumption 
of  innocence,  as  applied  in  criminal  cases,  is  a  form  of  expression 
whicli  requires  to  be  supplemented  by  the  rule  as  to  the  weight  of 
evidence;  that  it  is  merely  one  form  of  plirase  for  what  is  included 
in  the  statement  that  an  accused  person  is  not  to  be  prejudiced  at 
his  trial  by  having  been  charged  with  crime  and  held  in  custody, 
or  by  any  mere  suspicions,  however  grave;  but  is  only  to  be  held 
guilty  when  the  government  has  established  his  guilt  by  legal  evi- 
dence and  beyond  all  reasonable  doubt;  that  the  presumption  of 
innocence  is  often  used  as  synonymous  with  this  whole  twofold 
rule,  thus  drawn  out ;  that  it  is  a  convenient  and  familiar  phrase, 
and  probably  a  useful  one,  wheu  carefully  explained ;  but  that  it 
has  not  played  any  conspicuous  part  in  the  development  of  our 

and  application  of  the  term  "  burden  of  proof,"  the  opinion  says  :  "  The 
law  presumes  every  person  to  be  so  [of  sound  mind]  until  the  contrary  is 
shown,  and  tliis  presumption  is  of  probative  force  in  favor  of  the  propo- 
nents of  the  will.  ...  In  short  ...  on  the  whole  case  the  question 
would  be  whether  tlic  evidence  of  tlie  contestants  sufficiently  prepon- 
derated over  the  rebuttinj^  and  special  evidence  of  the  proponents,  includ- 
ing the  evidence  of  the  attesting  witnesses,  to  overcome  the  presumption 
of  sanity  which  constituted  tlie  proponent's  prima  facie  case.  In  other 
words,  leaving  the  presumption  of  sanity  out  of  the  case,  was  there  more 
evidence  of  insanity  than  of  sanity?  So  that,  putting  it  again  into  the 
case  there  would  still  be  as  much.  Then  and  then  only  would  tlie  scales 
of  justice,  to  which  the  court  below  in  the  case  before  us  referred,  be  so 
adjusted,  according  to  law,  that  it  would  be  connect  to  say  '  unless  at  the 
close  of  the  trial  the  balance  is  with  the  advocates  of  the  will  they  must 
fail ;  it  is  not  sufficient  that  the  scales  stand  evenly  balanced.'  "  The  opin- 
ion does  not  give  its  reasons  for  the  statement  that  the  presumption  has  a 
probative  quality,  and  can  be  "  weighed  in  the  scale,"  and  the  case  does 
not  necessarily  involve  the  point  above  discussed  ;  so  that  i"t  is  quite  possi- 
ble that  the  above  exposition  does  not  carry  with  it  the  authority  of  all 
the  judges  of  the  court.  For  the  true  basis  and  operation  of  this  presump- 
tion see  Davis  v.  U.  S.,  160  U.  S.  469,  486  (1895)  :  "  If  that  presumption 
[of  sanity]  were  not  indulged  the  government  would  always  be  under  the 
necessity  of  adducing  affirmative  evidence  of  the  sanity  of  an  accused. 
But  a  requirement  of  that  character  would  seriously  delay  and  embarrass 
the  enforcement  of  the  laws  against  crime,  and  in  most  cases  be  unneces- 
sary. Consequently  the  law  presumes  that  every  one  charged  with  crime 
is  sane,  and  thus  sup])lies  in  the  first  instance  the  required  proof  of 
capacity  to  commit  crime.  It  authorizes  the  jury  to  assume  at  the  outset 
tliat  the  accused  is  criminally  responsible  for  his  acts."  Harlan,  J.,  for 
the  court. 


566  APPENDIX  B. 

criminal  law  except  as  expressed  in  the  fuller  statement  given 
above.  It  may  be  added  that  the  phrase  "  presumption  of  inno- 
cence," if  used  to  a  jury,  peculiarly  needs  to  be  carefully  explained, 
because  of  the  very  great  ambiguity  connected  with  the  terms 
"presumption,"  "  burden  of  proof,"  and  "  evidence,"  and  the  way 
in  which  these  abused  expressions  reflect  their  own  ambiguities 
upon  each  other. 

Let  me  return  now  to  the  case  of  CoflBn  v.  U.  S.^  It  will  be 
necessary  to  consider  it  in  some  detail.  It  came  up  from  the  Cir- 
cuit Court  of  the  United  States  for  Indiana,  and  was  a  proceeding 
against  officials  of  a  national  bank  who  were  convicted  below  of 
wilfully  misapplying  funds  of  the  bank,  and  of  other  related 
offences.  A  great  number  of  exceptions  were  taken  to  the  charge 
given  by  the  court  to  the  jury.  All  but  two  of  these  were  over- 
ruled. The  principal  exception  was  against  the  refusal  of  the 
judge  to  charge  as  he  was  requested  on  the  subject  of  the  pre- 
sumption of  innocence. 2  He  had  been  asked  to  charge  that,  "  the 
law  presumes  that  persons  charged  with  crime  are  innocent  until 
they  are  proved  by  competent  evidence  to  be  guilty.  To  the  bene- 
fit of  this  presumption  the  defendants  are  all  entitled,  and  this  pre- 
sumption stands  as  their  sufficient  protection  unless  it  has  beeu 
removed  by  evidence  proving  their  guilt  beyond  a  reasonable 
doubt."  The  judge  refused  to  give  this  charge,  but  instructed  the 
jury  that  they  could  not  find  the  defendants  guilty  unless  satisfied 
of  their  guilt  beyond  a  reasonable  doubt,  and  he  said  :  "  If  you  can 
reconcile  the  evidence  with  any  rea.sonable  hypothesis  consistent 
with  the  defendant's  innocence,  it  is  your  duty  to  do  so.  In  that 
case  find  defendant  not  guilty.  And  if,  after  weighing  all  the 
proofs,  and  looking  only  to  the  proofs,  you  impartially  and  hon- 
estly entertain  the  belief  that  the  defendant  may  be  innocent  of 
the  offences  charged  against  him,  he  is  entitled  to  the  benefit  of 
that  doiibt,  and  you  should  acquit  him."  In  various  forms  the 
judge  went  on  to  explain  what  "  a  reasonable  doubt"  is,  and  to 
make  very  clear  the  duty  of  the  jury  as  to  the  weight  of  evidence 
which  they  were  bound  to  require  before  they  could  find  guilt. 

1  1 50  U.  S.  432. 

'^  The  action  of  the  trial  judge  is  described  in  the  opinion  of  the  upper 
court  thuH  :  "  Whilst  the  court  refn.sed  to  instruct  as  to  tiie  presumption 
of  innocence,  it  instructed  fnlly  as  to  reaBonahle  doubt."  This  statement 
is  not  f|nite  exact,  as  will  hr  indiciatod  later. 


PRESUMPTION  OF  INNOCENCE   IN  CRIMINAL  CASES.     507 

The  Supreme  Court  held  that  there  was  error  in  refusing  the 
charge  wliich  was  desired  on  the  presumption  of  innocence;  and, 
while  recognizing  that  no  particular  form  of  words  was  necessary, 
in  dealing  with  this  presumption,  they  held  that  the  error  was  not 
made  good  by  anything  found  in  the  rest  of  the  charge.  The  opin- 
ion of  the  court  was  given  by  Mr.  Justice  White,  and  was  not 
accompanied  by  any  ex{)ressiou  of  dissent.  It  declares  that  the 
principle  that  there  is  a  pi'esuniption  of  innocence  is  "axiomatic 
and  elementary,  and  its  enforcement  lies  at  the  foundation  of  the 
administration  of  our  criminal  law."  Many  citations  are  given  to 
show  that  thei'e  is  a  presumption  of  innocence.  The  doctrine  that 
guilt  can  only  be  found  by  the  clearest  evidence  is  quoted  from 
various  writers,  and  this  principle  is  referred  to  as  being,  in  the 
language  of  the  court,  one  of  the  "  results  of  this  maxim  "  of  the 
presumption  of  innocence,  but  no  reason  is  giv^en  for  this  view 
other  than  what  will  be  stated  hereafter.  The  language  of  Lord 
Gillies,  the  dissenting  judge  in  the  Scotch  case  already  referred  to, 
McKinley's  case,  is  cited  at  length,  as  showing,  in  the  phrase  of 
the  opinion,  "how  fully  the  presumption  of  innocence  had  been 
evolved  as  a  principle  and  applied  at  common  law  ;  "  but  it  is  not 
remarked  that  this  is  a  dissenting  opinion,  and  that  the  case  is  a 
Scotch  case,  and  not  one  at  common  law.  The  opinion  then  goes 
on  to  inquire  whether  the  charge  did  substantially  embody  a  state- 
ment of  the  presumption  of  innocence.  It  is  declared  that  the 
authorities  upon  what  is  a  sufBcient  statement  of  this  presumption 
are  "  few  and  unsatisfactory."  Referring  to  cases  in  Texas,  Indiana, 
Ohio,  Alabama,  and  California,  on  one  side  and  the  other  of  the 
question,  to  an  anonymous  article  in  the  Criminal  Law  Magazine, 
and  to  Stephen's  statement  of  the  presumption  of  innocence,  and 
the  remarks  of  Mr.  Chamberbiyne,  the  editor  of  Best,  the  opinion 
goes  on  to  say  that  it  is  necessary  to  consider  "  the  distinction  be- 
tween the  presumption  of  innocence  and  reasonable  doubt,  as  if  it 
were  an  original  question."  The  question  is  then  put  as  being 
"  whether  the  two  are  equivalents  of  each  other  ?  "  and  it  is  pro- 
posed to  "  ascertain  with  accuracy  in  what  each  consists."  It  may 
be  remarked,  at  this  point,  that  this  form  of  putting  the  question, 
imputes  a  very  fatuous  confusion  of  ideas  to  those  who  hold  that 
the  rule  requiring  proof  of  guilt  beyond  a  reasonable  doubt  em- 
bodies in  it  all  that  the  presumption  of  innocence  really  means. 
They  would  hardly  agree  that  they  are  arguing  that  the  presump- 
tion of  innocence  and  reasonable  doubt  are  "equivalents  of  each 


668  APPENDIX   B. 

other;  "'  or  that  the  acliievement  of  the  opinion  as  it  is  described  in 
a  later  case  ^  in  saying:  "  The  court  drew  a  distinction  between  the 
presumption  of  innocence  as  one  of  the  instruments  of  proof,  con- 
tributing to  bring  about  that  state  of  case  from  which  reasonable 
doubt  arises,  and  a  condition  of  mind  called  reasonable  doubt  pro- 
duced by  the  evidence,"  —  that  this  feat  was  either  one  that  required 
much  pains  to  accomplish  or  one  that  particularly  concerned  their 
own  contention. 

Having  thus  started  on  this  interesting  and  important  inquiry 
the  opinion  proceeds:  "  The  presumption  of  innocence  is  a  conclu- 
sion drawn  by  the  law  in  favor  of  the  citizen,  by  virtue  whereof, 
when  brought  to  trial  on  a  criminal  charge  he  must  be  acquitted 
unless  he  is  proven  to  be  guilty.  In  other  words,  this  presumption 
is  an  instrument  of  proof  created  by  the  law  in  favor  of  one  accused 
whereby  his  innocence  is  established  until  sufficient  evidence  is 
introduced  to  overcome  the  proof  which  the  law  has  created. 
This  presumption,  on  the  one  hand,  supplemented  by  any  other 
evidence  he  may  adduce,  and  the  evidence  against  him  on  the 
other,  constitute  the  elements  from  which  the  legal  conclusion  of 
his  guilt  or  innocence  is  to  be  drawn."  The  court  then  quotes  the 
passage  from  Greenleaf  on  Evidence,^  upon  which  I  have  com- 
mented; a  passage  from  AVills  on  Circumstantial  Evidence,  stating 
that  there  is  such  a  presumption  and  tliat  it  prevails  "until  de- 
stroyed bj'  such  an  overpowering  amount  of  legal  evidence  of  guilt 
as  is  calculated  to  produce  the  opposite  belief;  "  another  from  Best 
on  Presumptions,  simply  saying  that  it  is  presiimptio  Jiu'is  ;  another 
from  an  anonymous  article  in  the  Criminal  Law  Magazine,^  stating 
that  the  presumption  is  "  in  the  nature  of  evidence  in  his  favor, 
and  a  knowledge  of  it  should  be  communicated  to  the  jury,"  etc. 
The  opinion  then  goes  on,  "  The  fact  that  the  presumption  of  inno- 
cence is  recognized  as  a  presumption  of  law,  and  is  characterized 
by  the  civilians  as  jn-esinnplio  Juris,  demonstrates  that  it  is  evidence 
ill  favor  of  the  accused;  for  in  all  systems  of  law  legal  presump- 
tions are  treated  as  evidence  giving  rise  to  resulting  proof  to  the 
full  extent  of  their  legal  efficacy.  Concluding  then  that  the  pre- 
sumption of  innocence  is  evitlence  in  favor  of  the  accused,  intro- 
duced by  the  law  in  his  behalf,  let  us  consider  what  is  reasonable 

^  Cochran  v.  U.  S.,  l.'i?  U.  S.  28G,  299. 
2  Grlf.  Ev.  i.  a.  34. 

^  Tills  a])j)ears  to  liavo  liaou  an  ailMimc  chapter  of  Tliompson  on  Trials. 
The  ])a.SHag(;  i.s  fuiind  in  iliuL  work,  s.  21G1. 


PRESUMPTION   OF   INNOCENCE   IN  CRIMINAL  CASES.      569 

doubt."  We  are  then  told  that  reasonable  doubt  is  "  the  condition 
of  mind  produced  by  the  proof  resulting  from  the  evidence  in  the 
cause.  It  is  the  result  of  proof,  not  the  proof  itself;  whereas  the 
presumption  of  innocence  is  one  of  the  instruments  of  proof  going 
to  bring  about  the  proof  from  which  reasonable  doubt  arises;  thus 
one  is  a  cause,  the  other  an  effect.  To  say  that  the  one  is  the 
equivalent  of  the  other  is  therefore  to  say  that  legal  evidence  can 
be  excluded  from  the  juiy,  and  that  such  exclusion  may  be  cured 
by  instructing  them  correctly  in  regard  to  the  method  by  which 
they  are  required  to  reach  their  conclusion  upon  the  proof  actually 
before  them.  In  other  words,  that  the  exclusion  of  an  important 
element  of  proof  can  be  justified  by  correctly  instructing  as  to  the 
proof  admitted."  Farther  on,  tlie  opinion  says:  "  It  is  clear  that 
the  failure  to  instruct  them  [the  jury]  in  regard  to  what  that  [tlie 
presumption  of  innocence]  is,  excluded  from  their  minds  a  portion 
of  the  proof  created  by  the  law,  and  which  they  were  bound  to  con- 
sider." And  it  is  added  that  the  judge  below  in  limiting  the  atten- 
tion of  the  jury  *' '  to  the  proofs  and  the  proofs  only  '  confined  them 
to  those  matters  which  were  admitted  to  their  consideration  by  the 
court,  and  among  these  elements  of  proof  the  court  expressly 
refused  to  include  the  presumption  of  innocence  to  which  the 
accused  was  entitled,  and  which  the  court  was  bound  to  extend 
him." 

The  following  remarks  are  also  thrown  in  near  the  end  of  the 
discussion  :  "  The  evolution  of  the  principle  of  the  presumption  of 
innocence,  and  its  resultant,  the  doctrine  of  reasonable  doubt, 
makes  more  apparent  the  correctness  of  these  views,  and  indicates 
the  necessity  of  enforcing  the  one  in  order  that  the  other  may  con- 
tinue to  exist.  While  Rome  and  the  Medisevalists  taught  that 
wherever  doubt  existed  in  a  criminal  case  acquittal  must  follow, 
the  expounders  of  the  common  law  in  their  devotion  to  human  lib- 
erty and  individual  rights  traced  this  doctrine  of  doubt  to  its  true 
origin,  the  presumption  of  innocence,  and  rested  it  upon  this 
enduring  basis."  It  would  be  instructive  to  know  the  ground  for 
this  statement  as  to  "  the  expounders  of  the  common  law,"  and  the 
establishing  of  this  "  enduring  basis."  Unless  the  phrase  refers 
to  an  occasional  loose  dictum  of  a  law  writer  or  judge  in  this  coun- 
try, or  to  an  occasional  ill-considered  judicial  opinion  here,  I  know 
of  no  ground  for  it. 

Such  was  the  decision,  in  CofBn  v.  U.  S. ,  so  far  as  relates  to  the 
point  now  under  consideration,  and  such  the  general  course  of  the 


570  APPENDIX  B. 

exposition.  It  proceeds,  in  a  word,  on  tlie  ground  that  the  lower 
court  refused  to  recognize  the  presumption  of  innocence,  and  thus 
kept  from  the  jury  a  piece  of  evidence  in  behalf  of  the  accused  to 
which  he  was  entitled.  The  immediate  result  of  the  decision  was 
that  it  helped  to  delay  the  punishment  of  persons  well  deserving  it, 
as  appeared  when  the  case  came  back  again  after  another  trial,  and 
wlien  all  of  "  very  numerous  grounds  of  error  "  urged  by  these  de- 
fendants were  overruled.^  It  is  interesting  to  observe  that,  at  the 
new  trial,  the  charge,  so  far  as  quoted,  dealt  with  the  matters  now 
uuder  consideration  in  this  form  (p.  681) :  "  The  burden  of  proving 
Haughey  and  the  defendants  guilty  as  charged  rests  upon  the  gov- 
ernment, and  the  burden  does  not  shift  from  it.  Haughey  and  the 
defendants  are  presumed  to  be  innocent  until  their  guilt  in  manner 
and  form  ...  is  proved  beyond  a  reasonable  doubt.  To  justify 
you  in  returning  a  verdict  of  guilty,  the  evidence  should  be  of  such 
a  character  as  to  overcome  this  presumption  of  innocence  and  to 
satisfy  each  one  of  you  of  the  guilt  of  Haughey  and  the  defendants 
as  charged,  to  the  exclusion  of  every  reasonable  doubt."  This 
instruction  seems  to  have  raised  no  question.  Except  as  leaving  to 
the  jury  without  explanation  two  phrases  full  of  ambiguity,  namely, 
"presumption  of  innocence"  and  "evidence  ...  to  overcome" 
it,  it  seems  not  to  differ  materially  from  the  former  charge.  Can  it 
reasonably  be  supposed  that  on  such  a  charge  anybody  would 
imagine  the  presumption  to  be  a  piece  of  evidence,  to  be  placed  in 
th«  scales  and  weighed  against  other  evidence?  Such  a  charge  is 
only  in  form  an  acceptance  of  the  exposition  in  the  former  opinion 
of  the  Supreme  Court;  it  is  lip  service. ^ 

That  opinion,  however,  has  had  an  effect  outside  of  the  particu- 
lar case.  Its  somewhat  wider  range  than  common,  of  reference  and 
allusion,  has  caused  the  imputing  to  it  of  an  amount  of  learning 
and  careful  research  to  which,  when  scrutinized,  it  can  lay  no 
claim;  and,  to  be  quite  just,  it  does  not,  in  fact,  lay  claim  to  it. 
liiit  it  does  lay  claim  to  exactness  of  di.-crimination,  to  a  searching 
and  fundamental  examination  of  the  nature  of  the  questions  in- 
volved, and  to  the  character  of  a  leading  and,  in  a  degree,  a  final 
discussion  of  a  peculiarly  vexed  and  dillicult  subject.  This  claim 
nnist  be  disputed.  What  has  been  said  in  the  earlier  pages  of  this 
}iai)or  will  serve  to  show  grf)unds  for  denying  the  truth  of  tlie  chief 
historical  suggestions  of  tlic  opinion,  and  tlie  validity  of  some  of  its 

1  Coffin  V.  V.  S.,  1(52  U   S.  6f)4  (May,  189G). 

2  See  al.su  Agiiow  v.  U.  S.,  10.5  U.  S.  ;iG,  .'il  (January,  1897). 


PRESUMPTION  OF  INNOCENCE   IN  CRIMINAL  CASES.     571 

fundamental  conceptions.  Instead  of  settling  anything  outside  of 
the  particular  controversy,  it  leaves  matters  worse  off  than  before. 
Its  work  of  mischief  may  be  seen  in  the  use  of  it  in  such  later  cases 
as  Cochran  v.  U.  S.,^  U.  S.  v.  Davis, "^  Agnew  v.  U.  S.,^  (I  do  not 
now  speak  of  the  actual  point  decided  in  either  of  these  cases),  and 
No.  Ca.  c.  (xosnell.^  The  difficulty  witli  tlie  case  is  not  with  the 
actual  decision  —  namely,  that  on  the  point  in  question  a  new  trial 
should  be  granted;  that  could  easily  be  agreed  to,  without  any 
serious  difference  as  to  the  principal  matters.  The  trouble  is 
with  the  exposition  and  the  reasons.  The  absence,  therefore,  of 
dis.sent  in  this  case  may  have  very  little  significance.^ 

It  may  readily  be  admitted,  as  the  event  shows,  that  it  would 
have  been  practically  wiser  on  the  part  of  the  judge  below  to  have 
given  the  charge  as  requested  and  to  have  accompanied  it  with 
such  explanations  as  would  clear  away  ambiguity  and  would  pre- 

1  157  U.  S.  286  (March  25,  1895). 

2  160  U.  S.  469.  3  165  U.  S.  36. 
*  74  Fed.  Rep.  734  (W.  D.  No.  Ca.,  Juue,  1896). 

^  That  the  exposition  and  the  reasoniug  in  Coffin  v.  U.  S.,  156  U.S. 
432,  count  for  little  in  the  mind  of  the  court,  may  be  seen  in  Allen  v.  U.  S., 
164  U.  S.  492,  500  (Dec.  1896).  Error  was  assigned  in  a  refusal  to  charge 
that  "  where  there  is  a  probabiHty  of  innocence,  there  is  a  reasonal)]e 
doubt  of  guilt."  In  overruling  the  exception,  the  court  (Brown,  J.),  after 
reniarknjg  that  in  the  Coffin  case  a  refusal  to  charge  on  the  presumption 
of  innocence  was  held  not  to  be  met  by  a  charge  that  a  conviction  could 
not  be  had  unless  guilt  were  shown  beyond  a  reasonable  doubt,  added : 
"  In  the  case  under  consideration,  however,  the  court  had  already  charged 
the  jury  that  they  could  not  find  the  defendant  jruilty  unless  they  were 
satisfied  from  the  testimony  that  the  crime  was  established  beyond  a  rea- 
sonable doubt ;  that  this  meant :  '  First,  that  a  party  .starts  into  a  trial, 
tliough  accused  by  the  grand  jury  with  the  crime  of  murder,  or  any  other 
crime,  with  the  presumption  of  innocence  in  his  favor.  That  stays  with 
him  until  it  is  driven  out  of  the  case  by  the  testimony.  It  is  driven  out  of 
the  case  when  the  evidence  shows  beyond  a  reasonable  doubt  that  the 
crime  as  charged  has  been  committed,  or  that  a  crime  has  been  committed. 
Whenever  the  proof  shows  beyond  a  reasonable  doubt  the  existence  of  a 
crime,  then  the  presumption  of  innocence  disappears  from  the  case.  That 
exists  up  to  the  time  that  it  is  driven  out  in  that  way  by  proof  to  that 
extent.'  Tlie  court  having  tlius  charged  upon  the  sul)ject  of  the  presump- 
tion of  innocence  could  not  be  required  to  repeat  the  cliarge  in  a  separate 
instruction  at  the  request  of  the  defendant."  Compare  Agnew  v.  U.  S., 
ubi  sn])ra. 


5/w'  APPENDIX   B. 

vent  the  jury  from  misapplying  the  statements.  And,  farther  than 
that,  it  may  be  true,  as  a  general  proposition,  that  the  right  should 
be  maintained  to  have  the  presumption  of  innocence,  specifically, 
and  by  name,  drawn  to  the  attention  of  the  jury.  If  so,  it  should 
also  be  required  that  it  be  definitely  and  accurately  explained,  so 
tiiat  it  be  not  misused  as  if  in  itself  it  constituted  a  piece  of  pro- 
bative matter  to  be  weighed  against  other  evidence;  and  again,  so 
that  it  be  not  used  in  a  way  to  prevent  the  jury  from  allowing  all 
evidence  against  the  accused  to  have  its  full  natural  effect,  all 
through  the  case,  as  it  is  put  in.  Certainly  a  specific  declaration 
and  explanation  as  to  the  presumption  of  innocence  would  draw 
pointed  attention  to  those  dangers  of  injury  to  the  accused  from 
mere  suspicion,  prejudice,  or  distrust,  and  to  those  other  grounds 
of  policy  which  make  such  judicial  warnings  important. 

Now  what,  exactly,  was  it  that  the  judge  below  said  on  this  sub- 
ject? He  said  something  which,  although  quoted,  is  not  commented 
upon,  or,  as  it  would  seem,  duly  appreciated  by  the  court,  namely, 
"  If,  therefore,  you  can  reconcile  the  evidence  with  any  reasonable 
hypothesis  consistent  with  the  defendants'  innocence,  it  is  your 
duty  to  do  so,  and  in  that  case  find  the  defendants  not  guilty. 
And  if,  after  weighing  all  the  proofs,  and  looking  only  to  the 
proofs,  you  impartially  and  honestly  entertain  the  belief  that  the 
defendants  may  be  innocent  of  the  offence  charged  against  them, 
they  are  entitled  to  the  benefit  of  that  doubt,  and  you  should  acquit 
them."  This  language  required  the  jury,  in  considering  the  evi- 
dence, to  put  upon  it  the  construction  most  favorable  to  the 
defendants'  innocence.  In  effect  it  said  to  the  jury:  "So  long 
and  so  far  as  you  reasonably  can,  hold  them  innocent,  assume 
them  innocent,  or,  if  you  please,  presume  them  innocent,  for  these 
foi-ms  of  phrase  mean  the  same  thing.  Let  nothing  but  legal 
evidence  count  against  them,  look  to  the  proofs  and  the  proofs 
only,  and  let  not  the  evidence  or  any  amount  of  evidence  count 
against  them,  so  long  as  you  can  continue  as  reasonable  men  to 
think  them  innocent." 

When  the  judge  below  had  said  that,  in  addition  to  further  elab- 
orate and  confessedly  adequate  instructions  as  to  the  rule  which 
fi-quircs  a  weight  of  evidence  beyond  reasonable  doubt,  I  think 
tliat  it  cannot  truly  be  said,  as  the  <)])inion  does  say,  that  "  the 
court  refused  to  instru(;t  as  to  the  presumption  of  innocence;" 
and,  agniii,  tli.it  "among  these  elements  of  proof  the  court  ex- 
l)resHly  refused  lo  include  the  presumption  of  innocence."     What 


PRESUMPTION  OF  INNOCENCE   IN  CRIMINAL  CASES.      573 

the  judge  below  did,  was  to  refuse  to  instruct  in  the  particular 
form  requested ;  and  that  sort  of  refusal  is  not  necessarily  fatal; 
for,  as  the  court  in  the  Coffin  case  justly  says:  "  It  is  well  settled 
tiiat  there  is  no  error  in  refusing  to  charge  precisely  as  requested, 
provided  the  instruction  actually  given  fairly  covers  and  includes 
the  instruction  asked."  The  whole  question  is,  then,  whether 
the  instruction  below  fairly  covers  the  instruction  asked.  The 
instruction  asked  was  this:  "The  law  presumes  that  persons 
charged  with  crimes  are  innocent  until  they  are  proven  by  compe- 
tent evidence  to  be  guilty.  To  the  benefit  of  this  presumption  the 
defendants  are  all  entitled,  and  this  presumption  stands  as  their 
sufficient  protection,  unless  it  has  been  removed  by  evidence  prov- 
ing their  guilt  beyond  a  reasonable  doubt."  I  think  that  this 
charge  was,  in  effect,  given  when  the  jury  were  told  that  they  were 
to  reconcile  the  evidence  with  the  supposition  of  the  defendant's 
innocence  if  it  was  reasonably  possible;  to  consider  nothing  but 
the  evidence  and  only  to  find  the  defendants  guilty  when  the 
evidence  proved  it  beyond  a  reasonable  doubt. 

It  will  be  noticed  that  the  charge  requested  did  not  ask  for  any 
explanation  of  the  presumption  of  innocence,  nor  did  the  charge 
given  make  any  explanation  of  it.  As  the  request  for  a  charge  did 
not  say  that  the  presumption  of  innocence  was  in  itself  evidence, 
so  the  chai-ge  given  did  not  deny  that  it  was  evidence.  Why 
the  jury  should  presume  innocence  was  not  stated  in  the  request 
for  a  charge,  and  in  the  charge  aa  actually  given  it  was  not  stated 
why  the  jury  should  construe  the  evidence  favorably  to  the  accused 
so  long  as  it  was  reasonably  possible  to  do  so.  It  was  not  neces- 
saiy  to  do  it,  in  either  case,  for  in  both  cases  it  was  a  rule  that  was 
being  laid  down  to  the  jury,  and  the  grounds  of  the  rule  were  not 
necessarily  to  be  stated.  In  so  far  as  evidence,  in  any  proper  sense 
of  the  word,  was  concerned,  no  question  was  made  about  it,  in  the 
talk  about  the  presumption.  If  it  be  thought  true  that  the  fact 
that  men  in  general  are  innocent  is  the  evidential  ground  for  the 
rule  mentioned  in  the  request,  or  in  the  charge,  it  was  nothing  to 
the  purpose  to  go  into  that;  for  it  is  merely  the  legislative  reason 
for  laying  down  such  a  rule.  In  so«far  as  the  facts  on  which  the 
rule  rests  were  themselves  to  be  regarded  as  evidence  or  a  basis  for 
inference  in  the  case,  the  request  draws  no  attention  to  them,  and 
the  mere  omission  to  charge  on  them  is  no  legitimate  ground  of 
exception  —  according  to  a  familial'  rule  on  that  subject.  More- 
over, in  so  far  as  the  fact  that  men  in  general  are  innocent  is  a 


674  APPENDIX   B. 

ground  of  inference  for  the  jury  it  is  one  to  be  taken  notice  of  by 
court,  counsel,  and  jury,  without  proof,  and  without  anybody's  mov- 
ing them  thereto.  Certainly  there  was  no  refusal  of  any  request 
to  call  the  attention  of  the  jury  to  the  fact  that  men  in  general  are 
innocent;  the  refusal  was  one  to  charge  on  tlie  presumption  of 
innocence  in  the  form  above  stated,  and  that  form  offered  no  sug- 
gestion whatever  as  to  what  the  true  import  of  the  phrase  is.  The 
accused  then  had  no  cause  of  complaint  that  any  request  of  his 
counsel  was  refused. 

But  now  we  come  to  the  kernel  of  the  matter,  the  exposition  in 
the  opinion  of  the  meaning  of  that  phrase.  Let  us  look  at  that. 
It  said  that  the  presumption  of  innocence  is  a  conclusion  drawn  by 
the  law  by  virtue  of  which,  on  a  trial,  the  accused  must  be  ac- 
quitted unless  proved  guilty.  This,  it  will  be  observed,  states  the 
presumption  as  being  a  legal  "  conclusion  "  requiring  exactly  what 
was  fully  set  forth  by  tlie  trial  judge.  Then  we  are  told  that  the 
presumption  is  an  instrument  of  proof  created  by  law  in  favor  of 
the  accused  whereby  his  innocence  is  established  until  sufficient 
evidence  is  introduced  to  overcome  the  proof  which  the  law  has 
created.  Here  the  presumption  becomes  an  instrument  of  proof 
establishing  innocence,  and  is  itself  proof,  created  by  the  law. 
This  presumption,  it  is  said  again,  supplemented  by  any  other  evi- 
dence the  accused  may  produce,  on  the  one  hand,  and  the  evidence 
against  him  on  the  other,  constitute  the  elements  from  which  the 
legal  conclusion  of  guilt  or  innocence  is  to  be  drawn.  Here  the 
presumption,  our  "  conclusion  drawn  by  the  law,"  our  "  instrument 
of  proof,"  our  "  proof  created  by  law,"  becomes  evidence;  i.  e., 
probative  matter,  to  be  added  to  the  evidence  of  the  accused,  and 
balanced  against  the  evidence  of  the  government.  How  the  pre- 
sumption can  be  weighed  and  estimated  as  evidence  we  are  not 
told. 

Aft<!r  some  (juotations  the  opinion  then  says  that  the  fact  that 
the  presumption  of  innocence  is  a  presuiiiptio  jrii-is,  demonstrates 
tliat  it  is  evidence  in  favor  of  the  accused;  for,  it  is  added,  in  all 
systems  of  law,  legal  presumptions  are  treated  as  evidence  giving 
rise  to  resulting  proof,  to  the  full  extent  of  their  legal  efficacy.  No 
authority  is  given  for  that  statement,  and  no  explanation  of  what 
it  means;  but  it  is  added:  "Concluding  then  tliat  the  presumption 
of  innocence  is  evidence  in  favor  of  the  accused,  introduced  by  tlie 
law  in  his  Ixjlialf,"  etc.,  etc.;  and  then  later,  it  "  is  one  of  the 
instruments  of  proof,  going  to  bring  about  the  proof  from  which 


PRESUMPTION  OF  INNOCENCE  IN   CRIMINAL  CASES.     575 

reasonable  doubt  arises."  Again,  the  exclusion  of  it  is  called 
excluding  "legal  evidence,"  excluding  "  an  important  element  of 
proof,"  excluding  "  a  portion  of  the  proof  created  by  law." 

To  sum  it  up,  the  substance  of  all  this  is,  as  I  have  said  before, 
that  the  presumption  of  innocence  is  a  piece  of  evidence,  a  part  of 
the  proof,  —  i.  e.,  a  thing  to  be  weighed  as  having  probative  quality. 
And  the  grounds  for  saying  it  are  :  (1)  The  authority  of  the  phrase 
in  Greenleaf's  Evidence,  to  which  I  have  referred;  (2)  A  similar 
phrase  in  an  article  in  the  Criminal  Law  Magazine,  that  it  "is  in 
the  nature  of  evidence  ;  "  to  which  are  added  (3)  a  statement  in 
another  text-book  (Wills'  Circumstantial  Evidence)  that  the  pre- 
sumption must  prevail  till  destroyed  by  such  an  overpowering 
amount  of  legal  evidence  of  guilt  as  is  calculated  to  produce  the 
opposite  belief;  and  (4)  a  statement  in  Best  on  Presumptions  that 
it  is  presumptio  juris.  This  is  the  authority,  and  it  is  slight  indeed. 
And  the  opinion  ailds  a  strange,  unsupported  assertion  that  the 
recognition  of  the  presumption  of  innocence  as  a  presumption  of 
law  (presumptio  juris)  demonstrates  it  to  be  evidence,  and  that  in  all 
systems  of  law  legal  presumptions  of  law  are  treated  as  evidence. 
It  is  easy  to  make  such  an  assertion  and  to  leave  the  matter  there. 
But  as  one  who  has  long  and  attentively  studied  the  subject  of  pre- 
sumptions, I  can  only  say  that  I  know  of  nothing  to  support  it  in 
any  sense  which  tends  to  sustain  the  reasoning  of  the  opinion.  As 
against  such  an  utterance  I  will  merely  quote  the  statement  of  one 
of  the  most  thoughtful  writers  on  this  subject :  i  "  Legal  or  artificial 
presumptions  cannot  be  a  species  of  indirect  evidence.  A  fact  to 
which  a  legal  presumption  will  apply,  may  be  established  either  by 
direct  or  indirect  evidence;  but  legal  presumptions  themselves  can- 
not be  a  subdivision  of  evidence,  much  less  of  a  particular  kind  of 
evidence." 

AVhat  appears  to  be  true  may  be  stated  thus  :  — 

1.  A  presumption  operates  to  relieve  the  party  in  whose  favor  it 
works  from  going  forward  in  argument  or  evidence. 

2.  It  serves  therefore  the  jnirposes  of  a  prima  facie  case,  and  in 
that  sense  it  is,  temporarily,  the  substitute  or  equivalent  for 
evidence. 

3.  It  serves  this  purpose  until  the  adversary  has  gone  forward 
with  his  evidence.  How  much  evidence  shall  be  required  from  the 
adversary  to  meet  the  presumption,  or,  as  it  is  variously  expressed, 
to  overcome  it  or  destroy  it,  is  determined  by  no  fixed  rule.     It  may 

1  6  Law  Magazine,  348,  369  ;  supra,  539. 


576  APPENDIX  B. 

be  merely  enough  to  make  it  reasonable  to  require  the  other  side 
to  answer ;  it  may  be  enough  to  make  out  a  full  j)rvita  facie  case, 
and  it  may  be  a  great  weight  of  evidence,  excluding  all  reasona- 
ble doubt. 

4.  A  mere  presumption  involves  no  rule  as  to  the  weight  of  evi- 
dence necessary  to  meet  it.  When  a  presumption  is  called  a  strong 
one,  like  the  presumption  of  legitimacy,  it  means  that  it  is  accom- 
panied by  another  rule  relating  to  the  weight  of  evidence  to  be 
brought  in  by  him  against  whom  it  operates. 

5.  A  presumption  itself  contributes  no  evidence,  and  has  no  pro- 
bative quality.  It  is  sometimes  said  that  the  presumption  will  tij) 
the  scale  when  the  evidence  is  balanced.  But,  in  truth,  nothing 
tips  the  scale  but  evidence,  and  a  presumption  —  being  a  legal  rule 
or  a  legal  conclusion  —  is  not  evidence.  It  may  represent  and 
spring  from  certain  evidential  facts;  and  these  facts  may  be  put  in 
the  scale.  But  that  is  not  putting  in  the  i^resumption  itself.  A 
presumption  may  be  called  "  an  instrument  of  proof,"  in  the  sense 
that  it  determines  from  whom  evidence  shall  come,  and  it  may  be 
called  something  "  in  the  nature  of  evidence,"  for  the  same  rea- 
son; or  it  may  be  called  a  substitute  for  evidence,  and  even  "  evi- 
dence " —  in  the  sense  that  it  counts  at  the  outset,  for  evidence 
enough  to  make  a  prima  facie  case.  But  the  moment  these  concep- 
tions give  way  to  the  perfectly  distinct  notion  of  evidence  proper 
—  i.  e.,  probative  matter,  which  may  be  a  basis  of  inference,  some- 
thing capable  of  being  weighed  in  the  scales  of  reason  and  com- 
pared and  estimated  with  other  matter  of  the  probative  sort — so 
that  we  get  to  treating  the  presumption  of  innocence  or  any  other 
presumption,  as  being  evidence  in  this  its  true  sense,  then  we  have 
wandered  into  the  region  of  shadows  and  phantoms. 


APPENDIX  a 

[Supra,  405. J 


ON  THE  PRINCIPLES  OF  LEGAL  INTERPRETATION,  WITH 
REFERENCE  ESPECIALLY  TO  THE  INTERPRETATION 
OF   WILLS. 

Bv  F.  Vaughan  Hawkins,  Esq. 

[From  the  Jviridical  Society  Papers,  ii.  298.] 

In  bringing  the  subject  of  the  present  paper  under  the  notice  of 
this  Society,  it  may  be  well  to  state,  that  by  the  Principles  of 
Interpretation  I  mean  the  theoretical,  rather  than  the  practical, 
principles:  the  principles  -of  the  Science  rather  than  of  the  Art. 
There  is  obviously  both  a  science  and  an  art  of  Interpretation. 
The  business  of  the  art  is  to  collect  and  furnish  practical  rules  and 
maxims  for  performing  the  process  of  Interpretation,  in  relation  to 
this  or  that  class  of  writings  upon  which  it  may  have  to  be  exer- 
cised. The  business  of  the  science  is  to  analyze  the  nature  of  the 
process  itself  of  Interpretation,  and  to  discover,  by  a  deductive 
niethod,  the  principles  on  which  it  rests,  and  in  conformity  with 
which  the  proceedings  of  the  art  are  or  ought  to  be  regulated.  It 
is  the  latter  function  with  which  the  following  observations  are 
concerned;  and  although  I  cannot  hope  to  convey  a  complete 
sketch  of  the  theory  of  Interpretation  within  the  limits  of  this 
paper,  I  may  be  able  to  lay  a  foundation  on  which  such  a  theory 
may  be  built. 

It  would  be  a  waste  of  time  to  enlarge  on  the  importance  of  the 
scientific  study  of  Interpretation  as  a  branch  of  law;  but  it  is  sur- 
prising to  find,  when  one's  attention  has  been  called  to  the  subject, 
how  completely  it  has  been  broken  up  into  separate  divisions,  how 
little  light  one  part  of  the  subject  has  been  allowed  to  throw  upon 

37 


578  APPENDIX   C. 

any  other,  and  how  an  entirely  distinct  art  has  grown  up  for  the 
interpretation  of  each  of  the  different  classes  of  documents  which 
most  frequently  require  it,  all  applying  unconsciously  the  same 
principles,  but  each  refusing  to  acknowledge  its  obligations  to  the 
rest.  Jurisprudence  itself  is  defined  by  Heineccius  to  be  the  art 
of  interpreting  the  laws:  '■'■habitus  practicus  leges  recte  interpretandi, 
appllcandique  rite  speciebus  quibusvis  obvenientibus."  ^  Tieaties, 
contracts,  statutes,  deeds,  and  wills  —  each  of  these  kinds  of  wiit- 
ings  —  have  developed  a  separate  set  of  axioms  and  canons  of  con- 
struction, while  taken  together  they  present  an  immense  mass  of 
materials  for  constructing  the  science  of  interpretation,  which  has 
been  so  imperfectly  studied  in  comparison  with  the  art.  Take,  for 
instance,  the  English  law  of  the  interpretation  of  wills,  of  which 
my  thesis  makes  especial  mention.  The  art  of  interpretation  has 
here  been  carried  to  no  inconsiderable  perfection,  and  a  remarkable 
uniformity  of  decision,  even  in  the  most  perplexing  cases,  is  in 
practice  attained.  Nevertheless,  it  is  a  branch  of  the  law  almost 
impossible  to  systematize  in  its  present  state,  owing  to  the  fact  that 
the  principles  which  have  to  be  applied,  and  which  are  practically 
understood  and  acted  on  with  tolerable  correctness,  have  never 
been  clearly  laid  down  and  exhibited  in  their  relation  to  each  other, 
but  are  enunciated  in  so  many  ways,  with  more  or  less  incomplete- 
ness, and  with  such  varying  but  always  imperfect  modes  of  expres- 
sion, that  the  interpretation  of  an  obscure  will  generally  gives  rise 
to  an  apparent  conflict  of  opposing  principles  on  the  most  elemeu 
tary  questions  of  the  science  of  interpretation,  and  judges  in  deliv- 
ering their  opinions  frequently  think  it  necessary  to  examine  afresh 
into  the  truth  of  the  most  fundamental  axioms,  and  even  come  to 
seemingly  opposite  conclusions  upon  them.  The  practical  residt 
is  that  tlie  ratio  decidendi  is  almost  impossible  to  ascertain  or  to 
express  succinctly,  and  this  branch  of  the  law  presents  an  aggregate 
of  something  like  twenty  thousand  cases  capable  of  being  cited  as 
authorities,  the  number  increasing  annually  by  hundreds,  and  the 
bulk  of  cases  individually  increasing  rather  than  diminishing  :  a 
state  of  things  which  might,  I  venture  to  think,  be  materially 
altered  by  a  more  accurate  knowledge  of  the  real  nature  of  the 
process  involved  in  the  interpretation  of  a  will,  of  the  methods 
employed  in  it,  and  of  the  limits  which  bound  it. 

The  system  of  interpretation  which  comes  nearest  to  a  scientific 
system  is  that  of  the  Civil  Law,  based  on  the  Roman  Law  ;  and  it 

^  Elementa  Juris  Civilis,  sec.  2G. 


ON  THE    PRIXCirLES   OF  LEGAL  INTERPRETATION.     579 

is  advisable  to  say  a  few  words  in  passing  on  the  reasons  which,  in 
my  opinion,  prevent  tliat  system  from  being  a  convenient  basis  on 
which  to  ground  the  analytical  consideration  of  the  siibject  on 
which  I  am  about  to  enter.  The  Civil  Law  system  of  Interpreta- 
tion is  derived  almost  entirely  from  the  methods  used  in  the  inter- 
pretation of  Roman  written  laws.  Now,  the  interpretation  of  laws 
in  the  Roman  system  of  jurisprudence  is,  I  need  hardly  mention 
in  this  Society,  highly  peculiar.  That  system  extended  the  limits 
of  logical  or  inferential  Interpretation  in  a  way  certainly  not  ap- 
plicable to  any  other  class  of  legal  documents  than  laws,  and  not 
to  laws  even,  under  a  judicial  system  of  a  different  kind  from  the 
Roman.  The  controversy  between  the  Sabinians  and  Proculeians, 
between  the  logical  and  gi'ammatical  school  of  interpreters,  may 
appear  at  first  sight  to  be,  and  is  sometimes  referred  to  as  being, 
identical  with  that  which  may  be  called  the  fundamental  antithesis 
in  legal  interpretation  generally — the  opposition  between  inten- 
tion and  expression,  between  the  letter  and  the  spirit;  but  it  is 
in  reality  something  more  than  this .  it  is  a  constitutional  rather 
than  a  legal  problem,  and  resolves  itself  into  the  consideration 
of  the  proper  line  of  demarcation  to  be  drawn  between  the  func- 
tions of  the  legislator  and  the  judge.  That  the  rules  and  maxims 
derived  from  the  interpretation  of  Roman  laws  are  not  applicable 
to  legal  documents  generally,  is  forcibly  shown  by  the  remark  of 
Savigny,^  who  says  that  the  excellence  of  a  Roman  law  lay  in  its 
being  neither  too  plain  nor  too  obscure,  but  expressed  in  a  sort  of 
middling  obscurity,  "^m/"  eine7i  schnalen  Raume  mittelmdsxir/en 
Dunkelheit,''  a  phrase  which  sounds  ironical,  and  is  manifestly 
appropriate  only  to  writings  which,  like  Roman  laws,  and  perhaps 
the  sayings  of  some  philosophers,  are  made  avowedly  with  a  view 
to  being  interpreted,  and  not  to  legal  writings  in  general,  which,  it 
will  be  admitted  on  all  hands,  ought  to  be  so  plain  as  not  to  require 
interpretation.  Hence  the  Civil  Law  distinctions  of  literal,  mixed, 
and  rational,  restrictive,  and  extensive  interpretation,  and  the  like, 
are,  I  think,  too  special  to  betaken  as  the  framework  of  an  analysis 
of  interpretation  generally,  although  some  of  the  problems  in  the 
subject  have  never  been  better  discussed  [than]  by  the  Roman  law- 
yers, and  such  passages  as  the  well-known  one  in  the  Caecina,- end- 
ing with  the  words,  "  Quce  res  igitur  valuit  f  Voluntas:  quce  si  tacilis 
nobis  intelligi  posset,   verbis  omnino   non    uteremur :    quia  non  potest, 

1  Si/st.  des  heut.  Rom.  Recks,  sec.  .50. 

2  Pro  Caecina,  caj).  18  sqq. 


580  APPENDIX  C. 

verha  reperta  sunt,  non  quce  impedirent,  sed  qiice  indicarent  vohui- 
tatem,'"  will  always  sujiply  a  terse  and  striking  quotation  to  the 
liberally  disposed  interpreter  of  writings  of  whatever  kind. 

It  would,  however,  be  unjust  to  omit  that  the  importance  of  the 
interpretation  of  treaties  in  international  law  has  caused  some 
attention  to  be  given  it  by  writers  on  that  subject ;  and  the  chapter 
on  Interpretation  in  Rutherforth's  Commentaries  on  Grotius,  as 
an  analysis  of  the  construction  of  language,  and  the  chapter  on 
the  Interpretation  of  Treaties  in  Vattel,  as  a  collection  of  practical 
maxims,  are  more  satisfactory  perhaps  than  anything  of  a  similar 
nature  to  be  found  elsewhere.  But  upon  the  whole,  it  seems  to 
me,  that  the  subject  is  best  approached  from  first  principles  ;  and  I 
shall  therefore  proceed  to  consider  what  is  the  object  and  the  real 
nature  of  the  process  of  legal  interpretation,  by  which  I  mean  the 
interpretation  of  any  document  of  a  legal  nature,  as  a  law,  a  treaty, 
a  contract  in  writing,  a  deed,  or  a  will. 

It  is  necessary  in  the  first  place  to  distinguish  that  which  takes 
place  in  the  interpretation  of  a  legal  writing,  such  as  I  have  men- 
tioned, from  that  which  takes  place  in  the  interpretation  of  written 
language  in  the  most  general  form.  In  the  latter  case  the  object 
is  a  single  one  —  to  ascertain  the  meaning  or  intention  of  the 
writer  —  to  discover  what  were  the  ideas  existing  in  his  mind, 
which  he  desired  and  endeavored  to  convey  to  us.  "  Interpretafio 
est  cnlleclio  mentis  ex  sir/nis  maxime  probabilibus,"  is  the  definition  of 
Grotius.  It  is  a  collecting  of  the  intent  from  the  most  probable 
signs  or  marks.  The  intent  of  the  writer,  the  ideas  existing  in  his 
mind,  cannot  be  known  to  us  with  certainty  :  we  can  only  ascertain 
them  to  a  greater  or  less  degree  of  probability  from  outward  marks 
or  signs.  The  language  used  is  one  set  of  marks  or  signs,  whose 
office  it  is  to  convey  the  writer's  meaning;  but  interpretation,  in 
its  most  general  form,  is  not  restricted  to  the  consideration  of  the 
single  set  of  signs  which  language  is,  still  less  is  it  debarred  from 
giving  to  those  signs  any  meaning,  however  discovered,  which  may 
accord  with  the  possible  or  probable  intention  of  the  writer.  To 
collect  the  intent  is  the  sole  object  of  inquiry ;  and  the  language, 
the  w  ritten  expression,  is  valuable  only  as  a  mark  or  sign  of  intent, 
a  medium  through  which  it  may  be  collected. 

In  the  interpretation  of  a  legal  document,  however,  we  have  not 
indeed  a  different,  but  an  additional,  object  of  in(|uiry.  We  desire 
not  solely  to  obtiiin  inffirmation  as  to  the  intention  or  meaning  of 
the  writer  or  writers,  but  also  to  see  that  that  intention  or  meaning 


ON   THE   PRINCIPLES   OF   LEGAL  INTERPRETATION.     581 

lias  been  expressed  in  such  a  way  as  to  give  it  legal  effect  and 
validity;  we  desire,  in  short,  to  know  what  the  writer  meant  by 
the  language  he  has  used,  and  also  to  see  that  the  language  used 
sufficiently  expi'esses  that  meaning.  The  legal  act,  so  to  speak,  is 
made  up  of  two  elements,  — an  internal  and  exteinal  one  :  it  orig- 
inates in  intention,  and  is  perfected  by  expression.  Intention  is 
the  fundamental  and  necessary  basis  of  the  legal  effect  of  the 
writing  ;  expression  is  the  outward  formality  annexed  by  the  law, 
both  as  a  condition  proper  to  ensure  due  deliberation  in  the  per- 
formance of  that  which  is  to  operate  by  force  of  law,  and  also  as  a 
means  of  securing  that  the  act  itself  shall  be  properly  evidenced 
and  authenticated.  The  law,  T  say,  requires  a  sufficient,  not  a  per- 
fect, written  expression.  This  question  will  have  presently  to  be 
considered  more  in  detail  ;  for  the  present  I  assume  it  to  be  so. 
To  the  general  object  of  inquiry,  therefore,  in  all  interpretation, 
the  collecting  of  the  intent,  there  is  superadded,  in  the  interpreta- 
tion of  a  legal  writing,  the  further  object  of  seeing  that  there  is  a 
sufficient  expression  of  the  intent  contained  in  the  writing  before 
us.  The  language  or  written  expression  is  therefore  valuable  in  a 
twofold  sense.  Towards  the  collecting  of  the  intent  it  is,  as  before, 
valuable  as  a  mark  or  sign,  though  not  necessarily  the  only,  or 
even  chief,  mark  or  sign,  but  it  may  be  one  among  many;  it  is, 
secondly,  valuable  in  and  by  itself,  as  a  condition  of  legal  validity, 
essential  to  give  effect  to  the  intention.  To  interpret  a  legal 
writing  is,  therefore,  first  to  collect  the  intent,  to  discover  the 
writer's  meaning;  secondly,  to  ascertain  that  that  meaning  is 
expressed  sufficiently. 

But  is  it  indeed  true  that  the  object  of  inquiry  is  to  discover 
what  tlie  writer  meant?  There  are  not  wanting  great  authorities, 
who  use  language,  and  that  habitually  and  emphatically,  which, 
taken  in  its  natural  sense,  would  imply  that  the  writer's  meaning 
was  not  the  object  of  inquiry  :  which  would  resolve  interpretation 
into  nothing  more  than  an  inquiring  into  the  meaning  of  words. 
Lord  Denman,  for  instance,  in  Rickmau  v.  Carstairs/  says  :  "  The 
question  in  this  and  other  cases  of  construction  of  written  instru- 
ments, is,  not  what  was  the  intention  of  the  parties  ;  but  what  is 
the  meaning  of  the  words  they  have  used."  Lord  AVensleydale  in 
very  many  cases  has  used  the  same  language.  In  Doe  v.  Gwillim,' 
he  says,  "  In  expounding  a  will,  the  court  is  to  ascertain,  not  what 

1  5  B.  &  Ad.  663. 

2  5  B,  &  Aci_  129. 


582  APPENDIX   C. 

the  testator  actually  intended,  as  contradistinguished  from  what 
his  words  express,  but  what  is  the  meaning  of  the  words  he  has 
used."  By  the  phrase  here  used,  "  what  the  testator  actually  in- 
tended," is  of  course  meant,  what  he  intended,  and  endeavored 
to  accomplish,  —  in  short,  what  he  meant  by  the  language  used,  in 
opposition  to  the  meaning  of  the  language,  which,  as  we  shall  "see, 
are  very  different  things.  I  remark  this  merely  because  the  word 
intend  is  perhaps  slightly  ambiguous,  and  might  be  used  to  mean 
something  which  a  person  had  in  his  mind,  but  neither  did  nor 
endeavored  to  do.  Throughout  this  paper  I  use  the  words,  the 
writer's  intention,  to  denote  that  which  he  desired  and  endeavored 
to  express,  although  he  may  not,  in  fact,  have  succeeded  in  prop- 
erly expressing  it;  in  sliort,  I  use  it  as  synonymous  with  that  which 
the  writer  meant  by  the  language  used,  or,  yet  more  shortly,  the 
writer's  meaning.  Again,  in  Gi'ey  v.  Pearson,^  Lord  AVensleydale 
says,  "The  will  must  be  in  writing;  and  tlie  only  question  is, 
what  is  the  meaning  of  the  words  used  in  that  writing."  Lastly, 
Sir  James  AVigram,  in  his  treatise  on  Extrinsic  Evidence,  of 
which  I  shall  have  more  to  say  hereafter,  lays  down  the  proposition 
at  the  outset  of  his  book,  with  perfect  distinctness.  "  The  ques- 
tion," says  he,-  "  in  expounding  a  will,  is  not  —  what  the  testator 
meant,  but  simply  —  what  is  the  meaning  of  his  words  ;  "  and  his 
discussion  of  the  admissibility  or  inadmissibility  of  the  various 
kinds  of  extrinsic  evidence  in  aid  of  the  exposition  of  a  will,  is 
based  entirely  on  this  supposed  principle.  There  appears  to  me  to 
be  in  this  maxim  a  fallacy  of  no  small  importance  ;  and  I  conceive 
it  to  be  impossible  rightly  to  apprehend  the  true  nature  of  the 
process  of  interpretation  without  a  clear  appreciation  of  the  differ- 
ence between  these  two  subjects  of  incpiiiy  :  what  the  writer  meant, 
and  what  is  the  meaning  of  his  words.  To  understand  this,  it  is 
necessary  to  enter,  to  some  slight  extent,  on  the  consideration  of 
the  theory  of  language. 

We  have  seen  that  the  interpretation  of  a  legal  writing  is  a  col- 
li'cting  of  the  intent — of  what  the  writer  meant,  that  is  —  from 
the  marks  or  signs  used,  accompanied  with  an  inquiry  into  the 
existence  of  the  other  essential  element  of  a  sullicient  written  ex- 
pression. The  instrument  of  written  expression  is  language;  — 
one  particular  set  of  marks  or  signs,  that  is,  of  which  the  pecul- 
iarity is,  that  a  portion  of  mankind  have  agreed  beforehand  to  use 

1  6  II.  L.  Cases,  106. 

2  Pago  8,  4t]i  edition  [sect.  9]. 


ON  THE   PRINCIPLES   OF   LEGAL  INTERPRETATION.      583 

them  according  to  certain  definite  significations,  which  significa- 
tions are  known  to  the  interpreter,  and  constitute  the  meaning  of 
the  words.  The  person  using  the  hmguage  may  or  may  not  have 
used  it  with  the  signification  thus  attached  to  it  by  general  agree- 
ment; in  other  words,  the  meaning  of  the  writer  may  or  may  not 
coincide  with  the  meaning  of  the  words.  But  the  meaning  of  the 
words  is,  in  theory  at  all  events,  a  fixed  one  ;  it  is  independent  of 
the  writer,  and  capable  of  being  known  by  the  interpreter,  not, 
like  the  writer's  intent,  with  a  greater  or  less  degree  of  probability, 
but  with  certainty.  Now,  the  result  and  the  object  of  the  intro- 
duction of  the  convention  of  language,  of  the  use  of  one  set  of  signs 
with  definite  significations  attached  to  them,  is  to  give  a  special 
form  to  the  process  of  interpretation ;  to  reduce  interpretation 
generally  from  the  indefinite  office  of  collecting  the  intent  from  all 
available  marks  or  signs  of  it,  to  the  simpler  and  almost  mechanical 
operation  of  giving  to  one  set  of  signs  their  previously  known 
meaning;  and  to  reduce  the  interpretation  of  a  legal  writing  from 
the  twofold  process  of  collecting  the  intent,  and  seeing  that  it  be 
sufficiently  expressed,  to  the  single  operation  just  now  mentioned, 
which  includes  both  inquiries  ;  for  it  is  manifest,  that  if  the  intent 
can  be  collected  from  the  single  set  of  signs  of  which  language 
consists,  by  giving  to  those  signs  their  proper  meaning,  there  must 
be  not  merely  a  sufficient,  but  a  perfect,  written  expression:  the 
meaning  of  the  words  wholly  coincides  with  the  intention  of  the 
writer.  The  simplification  thus  effected  in  interpretation  gener- 
ally, is  exactly  analogous  to  that  which  would  lake  place,  if  two 
persons,  ignorant  of  each  other's  language,  having  endeavored  in 
the  first  instance  to  comnmnicate  by  means  of  signs  and  gestures, 
were  suddenly  furnished  with  a  perfect  code  of  signals,  and  able  to 
use  them.  In  the  first  case,  he  who  sought  to  discover  the  other's 
meaning  was  obliged  to  keep  that  meaning  in  view  at  every  step, 
and  to  travel  continually  from  the  signs  to  the  supposed  intention, 
and  cice  versa,  guessing  at  the  meaning  of  the  signs  from  what  he 
conjectured  to  be  the  intent,  and  conjecturing  the  intent  from  the 
probable  meaning  ot  the  signs.  By  the  use  of  the  signals  he  would 
be  relieved  at  once  from  the  necessity  of  keeping  the  intention  in 
view  during  any  but  the  first  and  last  steps  of  the  process  of  inter- 
pretation ;  starting  with  the  assumption  that  it  was  the  intention 
of  the  other  to  use  the  signals  according  to  the  signification  be- 
longing to  them  in  the  code,  he  would  proceed  to  ascertain  that 
signification  with  entire  certaintv  from  the  signal-book,  and  having 


584  APPENDIX   C. 

done  so,  and  finding  the  meaning  intelligible,  he  would  consider 
his  original  assumption  to  be  confirmed  and  raised  to  so  higli  a 
degree  of  probability  as  to  be  beyond  further  question,  and  would 
conclu<le  with  reason  that  the  meaning  of  the  signals  coincided 
with  the  meaning  of  the  signaller,  which  latter  had  been  through- 
out the  ultimate,  though  not  the  immediate,  object  of  his  inquii'y. 

Supposing,  therefore,  language  to  be  a  perfect  code  of  signals, 
and,  moreover,  to  be  used  with  perfect  accuracy,  so  that  the  mean- 
ing of  the  words,  the  meaning,  that  is,  obtained  by  giving  to  the 
language  used  its  known  and  definite  signification,  was  in  all  cases 
plain,  and  intelligible,  and  appropriate  to  the  circumstances  to 
which  it  referred,  or  to  which  it  had  to  be  applied,  it  would  be 
correct  to  say,  that  the  object  of  inquiry  in  the  interpretation  of  a 
legal  writing  was  answered  by  ascertaining  merely  the  meaning  of 
the  words;  not  because  the  meaning  of  the  words  was  the  ultimate 
or  real  object  of  inquiry,  but  because  the  meaning  of  the  writer, 
which  is  the  real  object,  would  be  thereby  ascertained  to  so  high  a 
degree  of  probability,  that  expediency  would  not  allow  it  to  be 
questioned  by  the  admission  of  further  evidence,  or  the  inquiry 
after  intention  to  be  prosecuted  further.  It  would  not  be  true  to 
say,  as  in  the  passage  quoted  from  Sir  James  Wigram,  that  the 
question  was,  not  what  the  writer  meant,  but  what  was  the  mean- 
ing of  his  words:  it  would  be  true  to  say  that  the  meaning  of  his 
words  was  so  strong  a  proof  of  what  the  writer  meant,  that  the 
two  must  conclusively  be  taken  as  identical.  In  other  words,  in- 
terpretation would  be  inadmissible.  That  where  the  meaning  of 
the  words  is  plain,  it  is  not  allowable  to  question  its  being  the 
meaning  of  the  writer,  is  a  fundamental  maxim  of  all  systems  of 
interpretation.  Ubi  in  verbis  nulla  ambirjiiitas,  ibi  nulla  occurrit, 
volnntatis  quceslio,  says  the  Digest.  Aon  licet  interprelari  quce 
interprekitione  non  er/ent.  is  the  maxim  of  Vattel.  If,  therefore,  the 
dictum,  that  the  meaning  of  the  words  is  the  only  question  to  be 
con.sidered,  be  taken  merely  as  a  form  of  stating  this  maxim,  so 
far  it  is  practically  harmless,  although  theoretically  incorrect ;  but 
its  applicability  ceas(!S  the  moment  a  diffictdty  arises:  the  moment, 
in  short,  that  interpretation,  in  the  oi'dinary  sense  of  the  word, 
begins  at  all. 

For  what  is  it  that  gives  rise  to  all  qijestions  of  interpretation? 
Is  it  not  that  the  meaning  of  the  words  fails  to  express  the  mean- 
ing of  the  writer?  The  ino;ining  of  tlie  words,  their  known  and 
definite  signification,   is  ascert;tincil  ;    it    proves  to  be  not    plain, 


ON  THE   PRINCIPLES   OF  LEGAL  INTERPRETATION.      585 

not  intelligible,  not  appropriate  to  surrounding  facts  and  circum- 
stances. What  is  the  result?  Manifestly  the  presumption  that 
the  meaning  of  the  words  was  the  meaning  of  the  writer  is  re- 
butted: it  becomes  necessary  to  seek  further  for  that  meaning. 
Interpretation  is  brought  back  from  the  special  form  which  it  had 
assumed  through  the  introduction  of  the  convention  of  language, 
and  becomes  again  what  it  was  before,  namely,  a  double  inquiry  ; 
a  collectiug  of  the  intent  from  all  available  signs  or  marks,  and  an 
•inquiry  into  the  existence  of  a  sufficient  expression  of  that  intent 
in  the  single  set  of  signs  called  language.  The  gap  left  by  the 
partial  failure  of  language  to  express  the  intention  must  be  filled 
up  by  a  direct  inquiry  into  that  intention  by  the  help  of  other 
marks  of  it,  and  the  light  thus  obtained  must  be  combined  with 
the  light  previously  gained  by  the  inquiry  into  the  meaning  of  the 
words.  It  is  only  this  ulterior  process,  which  takes  place  when  the 
meaning  of  the  words  has  been  ascertained,  but  proves  not  to 
express  adequately  the  meaning,  to  which  the  name  of  interpretation 
is  usually  and  properly  applied. 

The  failure  of  language  adequately  to  convey  the  intention  may 
take  place  from  three  causes:  first,  the  imperfection  of  language 
in  itself,  considered  as  a  code  of  signals,  its  want  of  definite  signifi- 
cation, and  its  inadequacy  to  the  expression  of  every  phase  of 
thought;  secondly,  from  the  improper  and  unskilful  use  of  lan- 
guage by  the  writer  ;  thirdly,  from  the  limited  nature  of  the  human 
mind,  incapable  of  foreseeing  all  contingencies  to  which  the  expres- 
sion of  its  intent  may  require  to  be  adapted,  especially  if  the  inter- 
pretation of  the  writing  takes  place  at  a  period  long  after  that  at 
which  it  was  composed.  The  imperfection  of  language  itself  as 
an  instrument  of  conveying  ideas  is  to  some  extent,  though  by  no 
means  completely,  treated  in  the  well-known  chapters  of  Locke  on 
the  impei'fection  and  abuse  of  words.  In  fact,  the  convention  on 
which  usage  of  language  rests  is  not  a  single  or  fixed  one,  but  is 
the  aggregate  of  an  innumerable  number  of  lesser  conventions, 
which  intersect  and  conflict  with  each  other,  and  are  continually 
shifting  and  changing  from  year  to  year.  The  usages  of  the  same 
words  at  different  times,  in  different  places,  by  different  writers, 
vary  greatly.  No  words  but  technical  words  have  their  connota- 
tion or  denotation  precisely  determined  by  authoritv :  the  classifi- 
cation and  fixing  of  meanings  belongs  to  a  very  important  but 
little  studied  subject  which  may  be  called  the  theory  of  diction- 
aries; but  were  that  theory  far  more  perfect  than  it  is,  language 


586  APPENDIX   C. 

would  be  and  would  always  continue  inadequate  to  meet  the 
perpetually  increasing  complexities  of  human  circumstances  and 
human  thought. 

Some,  indeed,  of  the  difficulties  thus  arising  may  be  solved  by  a 
more  accurate  investigation  of  the  meaning  of  the  words.  Evidence 
of  usage  may  cause  what  appeared  at  first  a  doubtful  meaning  to 
become  a  clear  one  ;  rules  of  grammar  may  disentangle  the  confu- 
sion of  a  sentence  or  a  paragraph  ;  unusual  or  technical  words 
may  be  properly  explained.  But  in  general  such  evidence  fails 
completely  to  solve  the  problem  ;  the  ambiguity  remains,  although 
one  side  or  the  other  may  somewhat  preponderate.  Here,  how- 
ever, is  to  be  noticed  an  expedient  by  which  the  ambiguities  of 
oi'dinary  language  may  be  to  some  extent  remedied ;  I  mean  by  an 
interpretation  clause,  such  as  now  usually  occurs  in  Acts  of  Parlia- 
ment, whereby  the  writer  himself  as  it  were  engrafts  upon  the 
general  agreement  which  determines  the  use  of  language  a  special 
agreement  of  a  more  limited  nature,  and  enables  the  interpreter  to 
know  with  certainty  the  sense  which  the  writer  intended  to  attach 
to  certain  words.  Such  an  interpretation  clause  may  properly  be 
considered  as  a  sort  of  appendix  to  the  signal-book  used  by  the 
interpreter,  — to  adopt  my  previous  illustration,  —  and  the  process 
of  interpreting  the  writing  by  means  of  it  may  be  regarded  as  a 
part  of  the  process  of  ascertaining  the  meaning  of  the  words. 

It  is  essential  to  remark,  that  the  possibility  of  proceeding  in  the 
inquiry  after  the  writer's  meaning  beyond  the  point  at  which  the 
meaning  of  the  words  fails,  is  dependent  on  the  assumption,  that  a 
perfect  written  expression  is  not  essential  to  the  legal  validity  of 
the  writing.  Permission  to  collect  the  intent  from  other  sources 
than  the  meaning  of  the  words,  implies  that  something  from  other 
sources  may  be  added  to  that  meaning.  If,  therefore,  there  were 
any  case  in  which  a  perfect  written  expression  were  essential,  in- 
terpretation, properly  speaking,  could  have  no  place,  and  the  axiom 
that  the  sole  o])ject  of  inquiry  is  the  meaning  of  the  words,  would 
there,  and  there  only,  be  a  true  one;  if  the  meaning  of  the  words 
were  in  any  degree  ambiguous,  obscure,  or  deficient,  the  intent 
must  be  inoperative.  Such  an  exnmple  may  perhaps  be  found  in 
the  strictness  of  consti'uction  wliicli  the  lioman  law  applied  to 
clauses  of  exheredation  in  testaments:  such  clmises  being  ngainst 
the  policy  of  the  law,  were  viewed  with  disfavor,  and  the  least 
deficien(;y  of  expression  rendered  them  luigatory.  This  rule  of 
construction   has   wandered  into  our   law  nnder  the  guise   of   the 


ON   THE   PRINCIPLES   OF   LEGAL  INTERPRETATION.     587 

maxim,  that  the  heir  is  not  to  be  disinherited,  unless  by  express 
words  or  necessary  implication  ;  but  like  some  others,  it  has  been 
deprived  of  its  meaning  in  the  process  of  being  transplanted,  and 
exists  only  as  a  lifeless  and  unmeaning  relic  of  a  different  system 
of  interpretation.  The  word  "necessary,"  in  which  the  whole 
force  of  the  maxim  originally  lay,  having  been  explained  away,  so 
as  to  mean  the  opposite,  not  of  probability,  but  of  mere  speculative 
conjecture,  in  which  sense  it  has  no  more  special  application  to 
heirs  than  to  next  of  kin,  or  any  other  persons,  things,  or  circum- 
stances. But  in  fact  with  no  class  of  writings,  nay,  with  no  one 
writing,  is  it  ever  the  case  that  it  is  inadmissible  to  travel  in  search 
of  the  intent  beyond  the  mere  meaning  of  the  words.  We  may 
distinguish  analytically  the  point  at  whicli  the  interpreter  ceases 
to  be  occupied  with  the  meaning  of  the  words,  and  begins  to  take 
cognizance  of  other  marks  or  signs  of  intention ;  but  in  practice, 
the  two  processes  are  impossible  to  separate:  and  it  is  hard  to  say 
where  meaning  in  the  sense  of  known  and  definite  signifiicatioa 
ends,  and  implication  or  inference  from  probable  intention  begins 
to  be  added  to  it.  Ordinary  language  is  full  of  ellipses  and  am- 
biguities, which  we  solve  unconsciously  to  ourselves  by  a  reference 
to  intention;  and  in  some  kinds  of  wiitingand  speaking  suggestion 
is  almost  without  limit,  and  the  meaning  of  the  words  bears  a  very 
small  proportion  indeed  to  the  amount  of  meaning  conveyed  or 
hinted  at.  A  law,  therefore,  which  enjoined  a  perfect  written 
expression,  would  be  impossible  to  be  obeyed,  and  the  command 
which  gives  rise  to  the  necessity  of  the  letter,  in  a  legal  writing, 
must  itself  be  interpreted  according  to  the  spirit. 

Indeed  the  pi'ocess  of  interpretation  bears  a  strong  analogy,  and 
one  which  I  think  it  is  profitable  to  bear  in  mind,  to  the  course  of 
equity.  What  is  it  but  the  correcting  or  supplementing  of  the 
language  of  the  writing,  which  by  itself  yields  no  clear  meaning, 
by  the  aid  of  other  marks  or  signs  of  intent;  in  short,  a  bringing 
of  the  expression  into  harmony  with  the  probable  intention  ?  The 
resemblance  of  this  definition  to  the  Aristotelian  definition  of 
equity,  iTravopdaiia  vojjlcv  j)  t AXetVei  8ia  to  Ka66Xov,  is  obvious.  In- 
tci-pretation  is  in  truth  a  species  of  equity,  just  as  equity  may  be 
said  to  be  a  liberal  interpretation  of  the  law.  The  object  of  inter- 
pretation is  to  supply  the  deficiency  of  the  written  expres.sion.  It 
is  not  a  mere  collecting  of  the  intent,  since  intent  denuded  of 
expression  can  have  no  legal  validity  ;  it  collects  the  intent  only 
for  the  purpose  of  rectifying  the  expression,  and  only  so  far  as  that 
rectification  is  possible. 


588  APPENDIX  C. 

Interpretation,  which  thus  occupies  itself  with  the  direct  search 
after  the  intent,  for  the  purpose  of  bviugiug  the  expression  into 
harmony  with  it,  is  sometimes  called  interpretation  by  inference, 
'■'■  interpretatio  naTo.  o-uXXoyLo-^iou,"  in  opposition  to  literal  interpreta- 
tion, or  the  mere  determination  of  the  meaning  of  the  words.  In 
fact,  however,  all  interpretation,  whether  literal  or  inferential,  is  a 
process  of  inference  or  reasoning  by  probabilities  ;  for  the  intent, 
which  is  the  ultimate  object  of  inquiry,  can  never  be  the  subject 
of  immediate  knowledge,  but  must  in  any  case  be  inferred  from 
one  species  or  other  of  marks  or  signs,  with  a  greater  or  less  degree 
of  probability.  The  difference  is  that  literal  interpretation,  so  far 
as  it  succeeds,  operates  to  reduce  the  inference  to  a  single  step,  or 
rather  to  two  steps,  the  commencing  and  final  ones,  while  interpre- 
tation which  is  not  literal,  consists  of  a  chain  or  series  of  infer- 
ences, which  embrace  and  connect  together  all  the  marks  or  signs 
of  intention  which  are  made  use  of,  every  step  of  the  process 
involving  a  separate  appeal  as  it  were  to  probability. 

It  seems  surprising  that  the  nature  of  that  interpretation  which 
clears  up  the  ambiguities,  or  obscurities,  or  contradictions,  of  a 
writing,  should  be  so  entirely  mistaken  as  that  any  one  should 
assert  the  meaning  of  words,  and  not  the  intention,  to  be  in  such 
a  case  the  object  of  inquirj'.  It  is  curious  to  what  shifts  those 
who  maintain  this  opinion  are  sometimes  driven.  A  judge  ^  is 
called  upon  to  interpret  a  limitation  in  a  will,  of  leaseholds  to 
A.  B.,  his  executors,  administrators,  and  assigns,  for  his  life. 
'J"he  meaning  of  the  words  is  here  ascertained  witliout  the  slightest 
difhculty ;  but  when  ascertained,  it  is  repugnant  and  contradictory, 
and  the  presumption  that  the  meaning  of  the  words  coincided  with 
tiie  writer's  meaning  is  therefore  rebutted.  Suppose  it  to  be 
decided  that  the  limitation  in  question  shall  confer  a  life  estate, 
and  that  tiie  words,  "his  executors,  adniuiistrators,  and  assigns," 
are  only  an  incorrect  mode  of  intimating  that  the  person  in  ques- 
tion is  to  take  a  beneficial  interest,  is  it  possible  to  avoid  seeing 
that  this  conclusion  does  not  proceed  upon  the  meaning  of  the 
words,  but  the  meaning  of  the  writer  ;  that  so  far  from  carrying 
out  to  the  full  the  meaning  of  the  words,  it  does  in  fact  deprive 
some  of  the  words  used  of  their  proper  meaning,  and  soften  them 
down  so  as  to  bring  the  expression  as  a  whole  into  harmony  with 
what  can  be  inferred  to  be  the  meaning  of  the  person  using  it  ? 

1   Soo  Morral  n.  Sutton,  1  I'hil.  .W.'J,  and  Lord  Wcnslcydale's  judgment 
ill  that  caHO. 


ON  THE   PRINCIPLES   OF   LEGAL   INTERPE STATION.      589 

If  the  foregoing  observations  have  made  clear  the  nature  of  the 
process  of  interpretation,  in  the  form  in  which  we  are  considering 
it,  the  next  point  to  be  observed  is  the  nature  of  the  methods  or 
means  which  it  employs,  and  the  limits  of  its  application. 

Of  the  latter,  it  is  sufficient  for  the  present  to  say,  that  since  the 
object  of  the  proceeding  is.  to  rectify  the  expression  by  the  intent, 
it  can  be  carried  no  further,  on  the  one  hand,  than  it  can  be 
inferred,  from  the  marks  or  signs  indicative  of  intent,  and  with  a 
sufficient  degree  of  probability,  that  the  intent  exists,  and  that  in  a 
sufficiently  definite  form;  nor,  on  the  other  hand,  can  it  be  carried 
on  in  the  entire  absence  of  a  written  expression,  since  there  must 
be  words  which  can  be  so  interpreted  as  to  bear  the  meaning  which 
is  inferred  to  be  the  writer's  meaning,  on  which  the  intent  can,  so 
to  speak,  be  ingrafted,  without  too  wide  a  departure  from  their 
known  signification.  And  it  is  also  clear  that  the  process  in  ques- 
tion need  not,  and  cannot  be  carried  beyond  the  point  when  the 
language  has  been  brought  into  accordance  with  the  probable 
intent  ;  since  it  is  only  through  the  fact,  and  to  the  extent,  that 
there  exists  a  discordance  between  the  language  and  the  intent, 
between  the  meaning  of  the  words  and  the  meaning  of  the  writer, 
that  the  former  becomes  subject  to  alteration  :  when  the  language 
has  been  interpreted  so  that  the  meaning  is  clear,  the  presumption 
that  that  meaning  must  be  the  writer's  meaning  returns  in  full 
force,  and  the  office  of  interpretation  is  at  an  end. 

The  proposition  that  interpretation  cannot  proceed  except  on  the 
ba.sis  of  a  supposed  intent  may  perhaps  be  disputed.  It  may  be 
said,  do  not  a  large  proportion  of  the  difficulties  which  occur  in 
the  interpretation  of  written  language  arise  from  the  fact,  that  the 
writer  had  in  fact  no  intention,  at  least  no  definite  intention,  upon 
the  point  on  which  bis  language  is  of  doubtful  meaning?  With 
some  such  view  I  have  seen  it  argued  that  the  word  "  construction  " 
comes,  not  from  the  verb  to  "•  construe,"  i.  e.,  to  put  together  and 
arrange  existing  materials,  but  from  the  verb  to  "  construct,"  as  if 
it  were  a  process  of  supplying  new  materials,  of  creation  in  fact, 
and  not  merely  arrangement.  But  this  view  I  tal<e  to  be  philo- 
sophically, as  well  as  etymologically,  fallacious.  I  cannot  see  on 
what  theory  of  interpretation  the  interpreter,  as  such,  can  have 
anything  to  do  with  that  which  he  is  not  led  to  infer  from  the  ma- 
terials before  him  to  have  been  the  intention  of  the  wiiter.  No 
doubt  the  same  judicial  or  other  authority  which  interprets  the 
writing,  may  also  exercise  an  ulterior  and  independent  power  of 


590  APPENDIX  C. 

disposition  or  enactment  over  the  same  subject-matter,  as  in  the 
case,  for  example,  of  what  is  called  cy  pres;  or  of  the  application  of 
laws,  by  a  judge  authorized  to  apply  the  spirit  of  tlie  law  to  cases 
confessedly  not  within  the  contemplation  of  the  franier  of  it;  but 
so  far  as  the  process  alone  of  interpretation  is  concerned,  there 
nmst,  it  seems  to  me,  be  a  basis  of  inferred  intention,  to  afford 
ground  for  any  interference  with,  or  modification  of,  the  meaning 
of  the  words.  It  is  to  be  observed,  that  there  may  be  cases  where 
intention  can  and  must  be  inferred,  although,  in  fact,  thei'e  may 
have  been  none.  The  interpreter  cannot  certainly  know  whether 
the  intent  existed  ;  it  is  the  indicia  of  intent,  the  marks  or  signs 
which  afford  reasonable  presumption  of  its  existence,  which  he 
can  alone  regard,  and  these  he  is  bound  to  regard,  although,  in 
spite  of  such  indications,  there  may  have  been  no  actual  intention. 
The  question  in  short  is,  not  what  the  writer  meant,  but  what  he 
has  authorized  the  interpreter  to  say  it  is  probable  was  his  mean- 
ing. But  if  there  be  a  total  absence,  not  merely  of  intent,  but  of 
indicia,  of  marks  or  signs  from  which  it  is  reasonably  to  be  col- 
lected, in  such  a  case  it  is  clear  the  process  of  interpretation  must 
stop  for  want  of  materials  :  and  therefore  it  is  correct  to  say,  that 
it  can  be  carried  only  so  far  as  the  intent  can  be  collected  with 
sufficient  probability. 

Passing  to  the  consideration  of  the  means  employed  to  har- 
monize the  expression  witli  the  intent,  we  observe,  that  this  opera- 
tion by  no  means  involves  the  rejection,  as  a  mark  or  sign  of  intent, 
of  that  which  had  alone  been  previously  employed  to  determine 
it,  namely,  the  meaning  of  tlie  words,  their  known  and  definite 
signification.  The  presumption  that  the  meaning  of  the  words 
coincided  with  the  meaning  of  the  writer,  has  been  displaced,  so 
far  as  to  allow  of  the  introduction  of  other  marks  or  signs  indica- 
tive of  intent,  the  meaning  of  the  words  being  taken  no  longer  as 
en  exclusive  guide,  but  coupled  with  the  rest,  each  receiving  such 
relative  weight  as  it  may  be  fairly  entitled  to.  The  meaning  of  the 
words  is  to  be  varied  by  the  result  of  all  tlie  marks  or  signs  taken 
together,  in  wliich  it  is  itself  included.  What  then  are  the  other 
marks  or  signs  indicative  of  intent,  other  than  the  meaning  of  the 
words?  They  may  be  divided,  T  think,  into  four  classes.  Either 
they  may  be  such  as  furnisli  direct  evidence  as  to  what  the  inten- 
tion is,  or  they  may  furnish  circumstantial  evidence  of  it,  that  is, 
evidence  of  facts  and  circumstances  from  which  it  is  to  be  col- 
lected ;  and  both  direct  and  circumstantial  evidence  of  intent  may 


ON  THE  PRINCIPLES  OF  LEGAL  INTERPRETATION.     591 

be  contained  in  the  writing  itself,  or  external  to  it.  And  first, 
the  case  of  direct  evidence  of  intent,  contained  in  the  writing 
itself,  may  be  seen  in  the  preamble  of  a  law  :  an  authentic  prelim- 
inary statement  by  the  writer,  of  that  which  he  was  about  to 
express  or  attempt  to  express  in  the  writing  to  be  interpreted. 
Such  evidence  of  intent,  being  both  unquestionably  material,  and 
proved  in  the  strongest  manner,  is  justly  regarded  as  the  most 
valuable  in  the  inquiry.  "  The  rehearsal  or  preamble  of  the 
statute,"  says  Coke,  "is  a  good  means  to  find  out  the  meaning  of 
the  statute,  and  as  it  were  a  key  to  open  the  understanding 
thereof."  And  the  constant  refeience  in  the  interpretation  of 
statutes,  to  the  intention  as  set  forth  in  the  preamble,  would,  one 
should  have  thought,  have  prevented  its  being  ever  supposed  that 
intention,  qua  intention,  was  a  matter  with  which  the  interpreter 
had  no  business  to  concern  himself. 

Secondly,  there  may  be  direct  evidence  of  intention  not  contained 
in  the  writing  itself,  but  proved  by  other  means.  In  the  case  of  a 
public  document,  such  as  a  law,  this  description  of  evidence  is  not 
often  likely  to  be  forthcoming.  In  the  case  of  writings  which 
express  the  concurrent  intent  of  two  or  more  persons,  as  treaties  or 
contracts,  evidence  of  intention,  contemporaneous  with  the  writing 
itself,  is  not  often  to  be  procured  or  depended  on  ;  but  the  subse- 
quent acts  of  the  parties  may,  in  some  cases,  usefully  be  taken  as  a 
guide.  The  most  common  case,  however,  of  this  kind  of  testimony 
is  that  of  parol  declarations  of  a  testator,  offered  in  explanation  of 
the  language  of  his  will;  a  species  of  evidence  plainly  the  least 
trustworthy  of  any,  both  from  the  distance  of  time,  the  liability  to 
inaccuracy  of  statement,  and  last,  not  least,  the  possibility  of  per- 
jury, where  detection  is  impossible  ;  for  which  reasons  such  evi- 
dence is,  in  all  systems  of  interpretation,  subjected  to  severe 
scrutiny,  and  in  our  own,  with  certain  exceptions,  rejected 
altogether. 

Circumstantial  evidence  of  the  intention  contained  in  the 
writing  may  be  of  two  kinds.  It  may  be  calculated  to  throw  light 
on  the  probable  natui-e  of  the  intention,  such  as  is  afforded  by 
other  dispositions  or  enactments,  provisions  or  language  bearing 
upon  the  same  or  similar  subject-matter;  oe  it  may  tend  to  show 
the  sense  which  the  writer  attached  to  particular  words  or  expres- 
sions, varying  in  a  greater  or  less  degree  from  their  meaning  as 
determined  by  usage.  Such  evidence,  so  far  as  it  goes,  rests  upon 
strong   proof,  and  the  maxim,  ex  antecedentibus  et  consequentibus 


592  .  APPENDIX   C. 

optima  Jit  interpretation  "  the  context  is  the  best  interpreter,"  bears 
testimony  to  its  value  as  a  mark  or  sign  of  intent;  yet  it  may  be 
difficult  in  many  cases  to  determine  how  far  it  is  really  material. 
The  fourth  an  1  last,  but  not  the  least  important,  species  of  evidence 
is  circumstantial  evidence  of  intention  not  contained  in  the  writ- 
ing, such  as  the  facts  and  circumstances  surrounding  the  writer  at 
the  time  when  he  wrote,  and  facts  and  circumstances  relating  to 
the  peisons  or  tilings  the  subject-matter  of  the  writing.  This 
description  of  testimonj'  enters  so  largely,  as  an  auxiliary  to  the 
meaning  of  the  words,  into  ordinary  language,  as  to  be  not  unfre 
quently  mistaken  for  a  part  of  that  meaning,  and  not,  as  it  really 
is,  an  addition  to  it.  Thus  the  writer,  to  whose  views  I  am  about 
to  refer  more  particularly  in  connection  with  this  part  of  the  sub- 
ject. Sir  James  Wigram,  says  :  ^  "A  page  of  history,  for  instance, 
may  not  be  intelligible  till  some  collateral  extrinsic  circumstances 
are  known  to  the  reader.  No  one,  however,  would  imagine  that 
he  was  acquiring  a  knowledge  of  the  writer's  meaning  from  any 
other  source  than  the  page  he  was  reading,  because  in  order  to 
make  that  page  intelligible  he  required  to  be  informed  to  what 
country  the  writer  belonged,  or  to  be  furnished  with  a  map  of  the 
country  about  which  he  was  reading."  In  what  way  a  knowledge 
of  the  country  of  the  writer  would  contribute  to  the  understanding 
of  a  page  of  history  is  not,  perhaps,  obvious  ;  but  to  take  the 
other  case,  that  of  a  historical  description  not  intelligible  without 
reference  to  a  map,  but  intelligible  with  that  assistance,  no  one 
who  looks  into  the  matter  can  fail  to  see  that  the  map  helps  by 
conveying  a  knowledge  of  some  fact  or  facts,  which  the  writer  of 
the  history  might  have  stated,  and  which,  if  he  had  stated,  the 
history  would  have  been  intelligible  without  the  aid  of  the  map  : 
in  other  words,  the  writing  alone  does  not  perfectly  express  the 
meaning  of  the  writer,  but  leaves  it  to  be  ascertained  partly  through 
the  meaning  of  the  words  and  partly  by  other  evidence.  It  is  true 
that  in  such  a  case  as  this  an  ordinary  reader  does  not  pause  to 
consider  what  may  be  the  exact  proportions  in  which  the  written 
descrii)ti()n  and  the  map  respectively  help  to  give  him  the  informa- 
tion lie  desires:  tiiis  comes  from  the  distinction  originally  pointed 
out  in  defining  the  object  of  legal  interpretation  as  opposed  to  that 
of  interpretation  generally,  since  it  is  only  in  the  case  of  a  legal 
writing  tliat  it  is  necessary  to  ascertain  whetiier  the  knowledge  of 
the  writer's  meaning  comes  from  the  words  alone,  with  the  aid  of 

1  Page  77   [sect.  76]. 


ON  THE  PRINCIPLES  OF  LEGAL  INTERPRETATION.     593 

that  evidence  wliich  can  alone  determine  their  meaning,  namely, 
evidence  of  usage,  or  whether  it  requires  to  be  partly  drawn  from 
other  sources,  which  constitute,  in  the  strictest  'sense  of  the  word, 
an  addition  to  the  document. 

Here  another  objection  may  be  taken  notice  of.  It  is  said,  and 
by  the  same  writer,  tliat  any  writing  whicli  I'efers  to  a  person  or 
thing,  must  at  all  events  require  external  evidence  in  aid  of  its 
construction,  so  far  as  this,  to  show  that  a  person  or  thing  exists 
which  answers  the  description  in  the  writing ;  that  such  evidence 
is  necessary,  although  the  meaning  of  the  words  fully  expresses 
tlie  meaning  of  the  writer,  being  sufficient  to  determine  the  partic- 
ular person  or  thing  intended  without  any  ambiguity.  This,  how- 
ever, is,  I  thiuk,  only  a  confusion  in  words.  If  the  subject  intended 
is  fully  and  perfectly  described  by  the  meaning  of  the  words  of 
the  writing,  no  difficulty  of  interpretation  ever  arises;  the  words 
do  not  require  to  be  interpreted,  and  the  introduction  of  any  kind 
of  evidence  of  in-tention  would  be  wholly  superfluous.  In  short, 
and  this  expresses  the  I'esult  of  tlie  whole  matter,  whenever  any 
description  of  evidence  is  used  to  put  a  meaning  on  the  language 
of  the  writing,  which  is  not  evidence  of  the  conventional  meaning 
of  words,  and  is  therefore,  directly  or  indirectly,  evidence  to  prove 
intention  ;  the  cause  of  the  introduction  of  such  evidence  is,  that 
the  meaning  of  the  words  is  insufficient  to  express  the  probable 
meaning  of  the  writer,  and  the  purpose  for  which  it  is  introduced 
is  to  supply  that  explanation,  or  definition,  or  qualification  which 
is  lacking,  and,  in  every  case,  to  make  an  addition  to  the  meaning 
of  the  words. 

Having  thus  briefly  suggested  rather  than  described  the  four 
kinds  of  evidence  of  intention,  which  iiiteri)retation  uses  to  com- 
bine with  the  original  meaning  of  the  words,  I  come  to  one  of  the 
principal  points  to  which  I  desire  to  call  attention,  namely,  that  there 
is  nothing  in  the  essential  conditions  of  the  problem  of  the  inter- 
pretation of  a  legal  writing,  if  the  process  be  such  as  I  have  de- 
scribed it,  which  excludes  from  consideration  any  of  these  kinds  of 
evidence  iu  its  proper  place.  And,  therefore,  that  if  we  find  one 
or  more  of  them  are  considered  inadmissible  in  any  particular  sys- 
tem of  interpretation  of  one  or  more  classes  of  writings,  the  rule 
of  exclusion,  and  the  consequences  which  flow  from  it,  will  form  a 
peculiarity  of  that  system,  and  must  be  mattei"  of  arbitrary  and 
positive  enactment.  The  contrary  to  this  proposition  is  the  foun- 
dation of  Sir  James  Wigram's    Treatise  on   Extrinsic  Evidence. 

38 


594  APPENDIX  C. 

His  theory  may  be  stated  as  follows  :  "  The  statute  which  requires 
a  will  to  be  in  writing,"  he  argues,^  "  precludes  a  court  of  inter- 
pretation from  ascribing  to  a  testator  any  intention  which  his 
written  will  does  not  express,  and  in  eifect  makes  the  writing  the 
only  legitimate  evidence  of  the  testator's  opinion."  "No  will  is 
•within  the  statute  but  that  which  is  in  writing;  which  is  as  much 
as  to  say,  that  all  that  is  effectual  and  to  the  purpose  must  be  in 
writing,  without  seeking  aid  of  words  not  written." 

This  reasoning,  it  is  observed,  if  true,  would  exclude  from  the 
inquiry  two  of  the  four  kinds  of  evidence  of  intention  ;  namely, 
those  not  contained  in  the  writing  itself.  It  would  not  exclude 
evidence  of  intention  derivable  from  the  writino;  itself,  whether 
direct,  as  from  a  recital  of  intention,  or  indirect,  as  from  the  con- 
text. But  Sir  James  Wigram,  it  seems  to  me,  argues  incorrectly 
from  this  incorrect  premise.  Therefore,  he  says,  the  only  object 
of  inquiry  is,  not  what  the  writer  meant,  but  what  is  the  meaning 
of  his  words  :  hereby  binding  himself  to  the  exclusion  of  all  evi- 
dence of  intention  whatever,  and  letting  in  nothing  but  evidence 
of  the  meaning  of  words ;  that  is,  evidence  of  usage.  He  then, 
upon  this  footing,  proceeds  to  divide  evidence  into  two  kinds: 
evidence  explanatory  of  the  words  themselves,  and  evidence  to 
prove  intention;  and  argues  that  the  former  kind  of  evidence,  i.  e. 
evidence  explanatory  of  the  words  themselves,  must  be  the  only 
admissible  one.  Under  the  head,  however,  of  evidence  explana- 
tory of  the  words  themselves,  Sir  James  Wigram  includes,  not 
only  evidence  furnished  by  the  context, — though  even  this,  it  is 
plain,  can  never  show  what  the  words  mean,  but  only  what  the 
writer  meant  by  them, — but  also  the  very  wide  and  almost  unlim- 
ited range  of  evidence  embraced  within  tlie  terms  of  his  fifth 
proposition,  which  is  this:-  — 

"  For  the  purpose  of  determining  the  object  of  a  testator's 
bounty,  or  the  subject  of  disposition,  or  the  quantity  of  interest 
intended  to  be  given  by  his  will,  a  court  may  inquire  into  every 
material  fact  relating  to  the  person  who  claims  to  be  interested 
under  the  will,  and  to  the  properly  which  is  claimed  as  the  subject 
of  disposition,  and  to  the  circumstances  of  the  testator,  and  of  iiis 
family  and  affairs,  for  the  purpose  of  enabling  the  court  to  identify 
the  person  or  thing  intended  by  the  testator,  or  to  determine  the 
quantity   of  interest  he  has  given   by  his  will.     The  same,  it  is 

1  rago  7  [sect.  9]. 

2  Pages  11   [sect.  17],  6.5,  [rroj).  5]. 


ON   THE   PRINCIPLES   OF  LEGAL   INTERPRETATION.      595 

conceived,  is  true  of  every  other  disputed  point,  respecting  which 
it  can  be  shown  that  a  knowledge  of  extrinsic  facts  can  in  any 
way  be  made  ancillary  to  the  right  interpretation  of  a  testator's 
words." 

The  concluding  part  of  this  canon,  it  will  be  observed,  reduces 
the  definition  to  no  definition  at  all ;  it  amounts  to  saying  tliat 
everything  is  admissible  in  aid  of  the  interpretation  of  a  will  which 
can  in  any  way  be  made  auxiliary  to  the  interpretation  of  it.  But, 
in  fact,  what  Sir  James  Wigram  means  to  include  under  his  fifth 
proposition,  is  that  kind  of  evidence  which  I  have  called  circum- 
stantial evidence  of  intention  not  contained  in  the  writing  ;  and  it 
is  j^ain  that  the  admission  of  this  sort  of  evidence,  on  the  plea  of 
its  being  explanatory  of  the  words  themselves,  is  the  result  of  that 
original  confusion  between  the  meaning  of  the  words  and  the 
writer's  meaning,  to  which  I  have  so  often  adverted.  Such  evi- 
dence in  reality  cannot  alter  the  meaning  of  tlie  words,  it  can  only 
lead  us  to  infer  what  the  writer  meant  by  them.  "  Suppose,"  says 
Sir  James  Wigram, ^  "  a  testator  to  devise  an  estate  to  A.  B.,  there 
being  two  persons,  father  and  son,  of  the  same  name,  and  that  the 
son  only  was  known  to  the  testator.  Or  suppose  a  testator  resident 
in  India,  to  bequeath  to  A.  B.,  who  was  also  in  India,  some  specific 
chattel,  e.g.,  a  gold  watch,  and  that  the  testator  had  with  him  in 
constant  use  a  specific  chattel  of  the  kind  described,  and  that  he 
was  also  owner  of  another  of  the  same  description  which  he  had 
left  in  England  twenty  years  before."  In  these  cases,  he  argues, 
evidence  showing  which  of  the  two  persons  bearing  the  same  name 
was  known  to  the  testator,  or  which  was  the  gold  watch  the  testator 
had  with  him  in  use,  would  be  evidence  explanatory  of  the  words 
themselves,  and  therefore  admissible.  The  fallacy  here  involved 
is,  I  think,  obvious.  The  name  John  Smith,  the  description  "  my 
gold  watch,"  contains  in  itself,  and  as  part  of  the  meaning  of  the 
words,  nothing  which  is  applicable  to  one  of  the  two  John  Smiths, 
or  of  the  two  gold  watches,  more  than  to  the  other  of  them ; 
nothing  which  can  decide  which  of  the  two  the  testator  intended. 
Evidence  of  the  facts  is  in  each  conclusive  as  to  the  writer's  mean- 
ing, but  it  can  add  nothing  to  the  meaning  of  the  words;  the 
words  mean,  after  the  facts  are  known,  precisely  what  they  did 
before,  and  nothing  more.  What  interpretation  i-eally  does  in 
such  a  case,  is  to  give  to  the  words  that  meaning  which  the  writer 
intended  they  should  have,  or,  which  is  the  same  thing  in  effect, 
1  Page  73   [.sect.  73]. 


596  APPENDIX   C. 

to  arid  to  the  name  or  description  that  additional  mark  or  sign, 
whatever  it  be,  which  applies  to  the  person  or  thing  intended,  or 
to  that  person  or  thing  only  :  the  description  is  thus  rendered  a 
complete  description,  and  the  words  as  interpreted  convey  a  mean- 
ing which  in  and  by  themselves  they  are  insufficient  to  convey. 

Indeed,  Sir  James  Wigram,  in  arguing  against  the  admissibility 
of  that  particular  kind  of  evidence  of  intention,  which  he  contends 
to  be  from  the  nature  of  the  case  inadmissible,  conclusively  refutes 
himself.  "If,"  he  says,  "the  just  exposition  of  the  statute  be, 
that  the  writing  which  it  requires  shall  of  itself  express  the  inten- 
tion of  the  testator,  it  is  difficult  to  understand  how  the  statute  can 
be  satisfied  by  a  writing  merely,  if  the  description  it  contains  have 
nothing  in  common  with  that  of  the  person  intended  to  take  under 
it,  or  not  enough  to  determine  his  identity.  To  define  that  which 
is  indefinite,  is  to  make  a  material  addition  to  the  will."  These 
words  forcibly  express  what  the  effect  of  all  interpretation  is, 
which  is  not  merely  a  determination  of  the  meaning  of  words.  It 
is  a  defining  of  that  which  is  indefinite  ;  it  is  adding  to  the  writing 
that  term. which  is  wanting,  in  order  to  determine  the  identity  of 
the  person  or  thing  referred  to,  or  whatever  it  be  which  is  insuffi- 
ciently expressed  by  the  meaning  of  the  words. 

The  most  surprising  part,  however,  of  Sir  James  Wigram's 
theory  is  yet  to  come.  The  arguments  I  have  referred  to,  if  they 
proved  anything,  would  at  least  prove  the  inadmissibility  of  that 
class  of  evidence  which  is  farthest  removed  from  the  meaning  of 
the  words,  —  I  mean  direct  evidence  of  intention  not  contained  in 
the  writing.  But  our  system  of  interpretation  confessedly  admits 
that  species  of  evidence,  in  its  most  unequivocal  form,  —  parol 
declarations  of  what  the  testator  actually  intended, — in  particular 
cases,  of  which  the  case  of  homonymous  persons  or  things,  of  there 
being  two  John  Smiths,  or  two  manors  of  Dale,  is  one.  Sir  James 
Wigram  endeavors  to  prove  this  to  be,  not  an  anomaly  or  an 
exception  to  the  theory,  but  entirely  in  accordance  with  it.  "  The 
cases,"  he  says,  "  will  be  found  to  have  reduced  the  law  to  a  settled 
jirinciple."  ^  His  ex{)lanatioii  of  these  cases  is  this  :  "Although," 
lie  says,^  "  the  woi'ds  do  not  ascertain  the  subject  intended,  they 
do  describe  it.  The  person  luld  entitled  in  these  cases  has  an- 
swered the  description  in  the  will.  The  effect  of  the  evidence  has 
only  been  to  confine  the  language  within  one  of  its  natural  mean- 

*  Preface  to  third  edition. 
2  Page  123   [sect.  152]. 


ON  THE   PRINCIPLES   OF   LEGAL   INTERPRETATION.      597 

ings.  The  court  has  merely  rejected,  and  the  intention  which  it 
has  ascribed  to  the  testator  sufficiently  expressed,  remains  in  the 
will.  An  averment  to  take  away  surplusage  is  good,  but  not  to 
increase  that  which  is  defective  in  the  will  of  the  testator.  Or, 
perhaps,  the  more  simple  explanation  is,  that  the  evidence,  only 
determines  what  subject  was  known  to  the  testator  by  the  name  or 
other  description  he  has  used."  He  then  refers  to  Lord  Wensley- 
dale,  who,  speaking  of  such  cases,  says,i  "  Such  evidence  is  admis- 
sible to  show,  not  what  the  testator  intended,  but  what  he 
understood  to  be  signified  by  the  words  he  used  in  the  will." 
Even  Lord  Abinger.  in  Doe  v.  Hiscocks,^  uses  similar  language. 
"  Thus,"  says  he,  "  if  a  testator  devise  his  manor  of  S.  to  A.  B.,  and 
has  two  manons  of  North  S.  and  South  S.,  it  being  clear  he  means 
to  devise  one  only,  whereas  both  are  equally  denoted  by  the  woi'ds 
he  has  used,  in  that  case  there  is  what  Lord  Bacon  calls  an  equivo- 
cation, i.e.,  the  words  equally  apply  to  either  manor,  and  evidence 
of  previous  intention  may  be  received  to  solve  their  latent  ambi- 
guity ;  for  the  intention  shows  what  he  meant  to  do,  and  when  you 
know  that,  you  immediately  perceive  that  he  has  done  it  by  the 
general  words  he  has  used,  which,  in  their  ordinary  sense,  may 
properly  bear  that  construction.  It  appears  to  us  that  in  all  other 
cases,  parol  evidence  of  what  was  the  testator's  intention  ought  to 
be  rejected,  upon  this  plain  ground,  that  his  will  ought  to  be  made 
in  writing;  and  if  his  intention  cannot  be  made  to  appear  by  the 
writing,  explained  by  circumstances,  there  is  no  will." 

The  whole  of  this  reasoning  may  be  answered  in  Sir  James 
Wigram's  own  words  :  "  To  define  that  whicli  is  indefinite  is  to 
make  a  material  addition  to  the  will."  The  case  of  two  persons  or 
places  bearing  the  same  name  is  a  case  where  language  is  imper- 
fect :  to  adapt  an  illustration  from  John  Stuart  Mill,  a  name  is 
like  the  chalk  mark  put  upon  the  door  in  the  story  of  "  The  Forty 
Thieves,"  which  Morgiana  lendered  useless  by  chalking  all  the 
doors  in  the  street  in  precisely  the  same  manner.  The  result  is, 
that  to  distinguish  any  one  door  f  rotn  the  other,  an  additional  mark 
of  some  soi-t  must  be  put  upon  it,  the  mark  originally  used  having 
come  to  mean  either  and  neither  of  the  objects  marked,  any  one 
considered  in  itself,  but  none  as  distinguished  from  the  others. 
It  is  not  true  to  say,  with  Lord  Abinger,  that  when  you  know  what 
the  writer  meant  to  do,  you  perceive  that  he  has  done  it  :  on  the 
contrary,  you  perceive  that  some  Morgiana,  as  it  were,  has  come  in 

1  Richardson  v.  Watson,  4  B.  &  Ad.  800.  2  5  M.  &  W.  363. 


o98  APPENDIX  C. 

to  defeat  Lis  intention,  and  has  succeeded  in  defeating  it,  unless 
you  will  permit  some  new  and  additional  mark  to  be  put  on,  which 
will  effectually  distinguish  the  object  of  the  writer's  intention  from 
other  similarly  marked  objects,  the  existence  of  which  he  was 
unaware  of  or  had  forgotten. 

To  recur  to  the  difficulty  originally  started  by  Sir  James 
Wigrani,  as  the  foundation  of  his  theory, — that  the  fact  of  a 
written  expression  being  required  by  law  as  a  condition  of  the 
validity  of  any  class  of  writings,  is  inconsistent  with  the  admission 
into  the  process  of  interpretation,  of  any  kind  of  evidence  of  inten- 
tion which  is  not  contained  in  the  writing  itself,  it  may  be  said,  I 
think,  in  answer  to  this  objection,  —  first,  that  the  requirement  of 
a  written  expression  is  an  obligation  or  command  addressed  to  the 
writer  and  not  to  the  interpreter,  and  with  which  therefore  the 
interpreter  is  concerned  only  indirectly,  so  far  as  it  imposes  on 
him  the  duty  of  ascertaining  that  the  command  has  been  suffi- 
ciently complied  with  —  that  there  exists  a  sufficient  written 
expression  —  while  it  leaves  him  at  liberty  to  interpret  that  com- 
mand in  an  equitable  and  liberal  spirit,  making  allowance  for  tHe 
imperfections  of  language  and  for  the  effect  of  circumstances  un- 
known to  the  writer  in  causing  his  expression  to  be  in  fact  imper- 
fect, where  he  thought  he  had  sufficiently  expressed  himself,  as  in 
the  case  of  the  two  persons  bearing  the  same  name,  when  the 
writer  only  knew  of  the  existence  of  one  of  them.  And,  secondlj', 
that  so  far  as  the  condition  of  law  we  are  considering  is  to  be 
regarded  as  one,  compliance  with  which  third  parties,  whose  rights 
the  operation  of  the  wiiting  if  valid  will  affect,  have  a  right  to 
demand,  its  existence  is  to  be  inquired  into  only  when  the  process 
itself  of  interpretation  has  been  duly  performed,  —  and  that  if  a 
Court  of  Interpretation  decides  that  the  words  used  may  be  so 
interpreted  as  to  bear  tlie  meaning  which  the  writer  intended  them 
to  have,  they  do  to  all  intents  and  purposes  carry  that  meaning ; 
and  therefore  the  writing  as  interpreted  does  fully  express  the 
writer's  intention,  although  without  interj)retation  the  meaning 
would  still  be,  as  it  was  before,  imperfectly  expressed,  ambiguous, 
and  obscure.  Or,  perhaps,  the  simplest  way  of  stating  the  theory 
is  to  adopt  the  analogy  already  suggested  in  this  paper,  and  to  say 
that  interpretation  is  a  species  of  equity,  which  interposes  to  prevent 
the  mischief  which  would  accrue  from  a  severe  and  rigorous  appli- 
cation of  the  rule  of  law,  requiring  the  meaning  of  the  writer  to  be 
completely  expressed. 


ON  THE   PRINCIPLES   OF   LEGAL  INTERPRETATION.     599 

It  is,  indeed,  somewhat  extraordinary  that  it  should  have  been 
supposed  that  direct  evidence  of  intention,  in  the  shape  of  paro 
declarations  of  a  testator,  was  necessarily  inadmissible  in  the  inter- 
pretation of  a  will  required  by  statute  to  be  in  writing,  when  a 
comparison  of  other  systems  of  testamentary  interpretation,  and 
even  a  glance  at  the  history  of  our  own  system,  so  evidently  proves 
the  contrary.  The  Roman  law,  though  imposing  considerable 
formalities  on  testaments,  received  such  evidence  without  scruple, 
only  requiring  it  to  be  strong;  and  the  almost  universal  ending  of 
the  numerous  rules  of  construction  in  that  system  is,  "  nisi  evi- 
dentissimis  testimoniis  prohetur  aliter  sensisse  testatorem,^^  or  similar 
expressions.  Courts  of  Equity,  following  the  rules  of  the  civil 
law,  down  to  the  time  of  Lord  Cowper,  made  no  objection  to 
receiving  the  same  class  of  evidence,  in  doubtful  cases;  only  taking 
care  not  to  allow  it  in  cases  where  it  might  conflict  with  any  of  the 
other  classes  of  evidence  of  intention,  which  they  justly  considered 
as  of  higher  value.  On  the  other  hand,  Courts  of  Law  had  estab- 
lished another  system  of  rules  as  to  the  admissibility  of  evidence 
of  this  description,  applying  equally  in  the  interpretation  of  all 
writings  under  seal,  whether  required  by  law  to  be  in  writing  or 
not ;  and  the  result  of  the  collision  of  these  different  systems  of 
interpretation  has  naturally  been  that,  after  some  confusion,  a 
compromise  has  been  arrived  at,  and  the  admission  of  evidence  of 
the  kind  in  question,  in  the  interpretation  of  wills,  is  now  regulated 
by  rules  altogether  arbitrary.^ 

The  common-law  rules  as  to  the  admission  of  evidence  of  inten- 
tion not  contained  in  the  writing  were  two,  which  are  generally 
included  together  in  Lord  Bacon's  maxim  as  to  the  patent  and 
latent  ambiguities,  with  his  comment  upon  it.  As  that  maxim 
and  comment  are  perhaps  not  always  properly  understood,  I  will 
here  devote  a  few  words  to  them.  These  rules  are,  as  I  have  said, 
matters  of  positive  enactment,  and  Sir  James  Wigram  appears  to 
me  to  have  acted  unwisely  in  rejecting  Lord  Bacon  as  his  guide, 
and  endeavoring  to  establish  them  on  a  priori  principles,  which, 
as  I  have  attempted  to  show,  are  not  correct.  The  rules,  which 
are  two,  are  distinct  from  each  other,  and  they  apply  equally  to  all 
written  instruments,  whether  required  by  law  to  be  in  writing  or 
not.  The  maxim,  '■'■amhiguilas  verborum  latens  verijicalione  suppletur, 
nam  quod  ex  facto  oritur  ambiguum  verijicatione  facti  tollitur"  ex- 
cludes all  evidence  of  intention,  direct  or  circumstantial,  not  con- 
^  [See  some  other  considerations  bearing  on  this,  supra,  441,  442.] 


600  APPENDIX   C. 

tained  in  the  writing  itself,  in  all   cases  where  the  difficulty  or 
problem  of  interpretation  to  be  solved  was  such  as  was  apparent 
on  the  face  of  the  writing:  allowing  extrinsic  evidence  of  intention 
to  be  introduced  only  where  some  fact  had  to  be  averred  before 
the  difficulty  was  raised.      This,   by  the  help  of  the   system  of 
pleading,  operated  as  a  rough  and  ready  rule,  which  let  in  such 
evidence  in  those  cases  where  perhaps  it  was  most  necessary,  where 
the  difficulty  related  to  some  person  or  thing  the  subject-matter  of 
the  writing;  but  it  undoubtedly,  while  adhered  to,   excluded  all 
that  kind  of  evidence   referred  to  in   Sir  James  Wigram's  fifth 
proposition,  namely,  surrounding  facts  and  circumstances  relating 
to  the  testator's  family,  etc.,  wherever  the  will  or  other  writing 
was  ambiguous  on  the  face  of  it.     It  would  not  be  difficult  to 
show  that  the  rule  has  been  gradually  lelaxed,  that  evidence  of 
facts  and  circumstances  has  by  degrees  come  to  be  considered  ad- 
missible in  all  cases,  and  that  the  only  rule  which  is  practically 
now  operative  in  limiting  the  reception  of  evidence  of  intention  is 
the  second  rule,  prohibiting  admission  of  direct  evidence  of  inten- 
tion from    extrinsic  sources.     This  rule  is  not  any  way  contained 
or  implied  in  the  maxim  of  latent  and  patent  ambiguities,  but  is 
stated  by  Lord  Bacon  in  his  comment  on  that  maxim,  when  he 
says  that  intention  itself  may  be  averred  only  in  the  case  of  equiv- 
ocation, that  is,  of  homonymous  persons  or  things;  because  there 
and  there  alone  it  would  stand  with  the  words,  would  not  tend  to 
alter  the  meaning  of  the  words,  that  is,  but  would  only  add  a  term 
to   that   meaning.      The   common-law   system    of   interpretation, 
therefore,  with  a  prudent  though  perhaps  excessive  jealousy  of  the 
inferior  kinds  of  evidence,  admitted  evidence  of  intention  not  con- 
tained in  the  writing,  only  where  the  ambiguity  of  the  writing 
could  not  be  detected  on  the  face  of  it,  and  admitted  direct  evidence 
of  intention  not  contained  in   the    writing,  only   in    the   case  of 
homonymous  persons  or  things. 

The  rejection  or  admission  of  the  various  kinds  of  evidence,  of 
the  marks  or  signs  of  intent  other  than  the  moaning  of  the  words, 
in  the  process  of  inferential  interpretation,  marks  the  point  at 
which  the  methods  of  interpretation  applied  to  different  classes  of 
writings  begin  to  diverge  from  one  anotlior,  and  tlieir  characteris- 
tics will  be  henceforth  detcrmine<l  by  the  subject-matter  of  each, 
and  by  considerations  peculiar  to  tiiis  or  that  judicial  system, 
rather  tlian  by  principles  common  to  all.  But  it  is  evident  that  the 
grand  (piestion  in  each  system  will  be,  what  is  to  be  the  combined 


ON   THE   PRINCIPLES   OF   LEGAL   INTERPRETATION.      001 

eifect  of  all  these  other  kinds  of  marks  or  signs  of  intent,  in  com- 
parison with  the  original  object  of  attention,  the  meaning  of  the 
words  ?  How  far  may  the  meaning  of  the  words  be  modified  by 
the  indications  of  intent  drawn  from  these  other  sources  ?  What, 
in  short,  are  the  limits  of  inferential  interpretation  ?  What  is  to 
determine  how  far  we  may  go  in  correcting  or  supplementing  the 
written  expression,  for  the  purpose  of  bringing  it  into  harmony 
with  the  probable  intention  ?  These  limits  will  be  in  fact  two, 
which  it  is  desirable  to  sepai'ate,  though  in  practice  the  distinction 
between  them  cannot  always  be  recognized.  The  meaning  of  tlie 
words,  as  I  originally  stated,  is  important  in  two  ways  :  as  a  sign 
of  the  latent,  and  as  a  condition  necessary  to  the  legal  validity  of 
the  writing.  As  a  sign  of  the  intent,  H  has  yielded  so  far  as  to 
admit  of  other  marks  or  signs  being  combined  with  it  ;  as  a  legal 
requirement,  its  necessity  remains.  The  extent  to  which  interpre- 
tation may  go  in  modifying  the  meaning  of  the  words  will  depend, 
therefore,  first,  upon  the  strength  of  the  presumption  that  the 
meaning  of  the  words  alone  expresses  the  meaning  of  the  writer; 
a  presumption  which,  though  partially  displaced,  is  yet  only  forced 
back  as  it  were  like  a  spring,  and  continually  tends  to  return;  and, 
secondly,  upon  the  greater  or  less  latitude  allowed  in  the  require- 
ment of  a  sufficient  written  expression.  The  result  of  these  two 
considerations  taken  together  will  determine  the  relative  weight, 
which,  in  the  interpretation  of  any  particular  writing  or  class  of 
writings,  is  to  be  assigned  to  the  letter,  to  the  meaning  of  the 
words  ;  and  how  great  the  strength  of  proof  of  intent  must  be 
■which  can  add  to  or  correct  it.  These  things,  like  the  boundaries 
of  the  jurisdiction  of  equity  itself,  can  be  fixed  only  in  practice 
and  approxiinatively  ;  but  it  is  easy  to  see  where  some  kinds  of 
writings  will  differ  from  others.  In  general,  the  presumption  that 
the  meaning  of  the  words  represents  the  meaning  of  the  writer  will 
be  stronger,  and  require  greater  cogencj'  in  the  evidence  of  intent 
adduced  to  vary  that  meaning,  in  proportion  as  the  writing  is  a 
more  formal  one,  as  it  presents  fewer  difficulties  and  obscurities  to 
the  interpreter,  and  to  some  extent  as  the  language  employed  is 
more  technical,  and  has  therefore  a  more  strongly  marked  and 
definite  meaning.  This,  of  course,  would  not  apply  to  documents 
which,  as  in  the  case  I  referred  to  of  laws  according  to  the  Roman 
conceptions  of  them,  were  framed  for  the  purpose  of  being  inter- 
preted; whether  this  were  done  in  order  that  they  might  be 
couched  in  such  general  terms  as  to  permit  of  application  to  dis- 


602  APPENDIX  C. 

tant  and  varying  circumstances,  or  whether,  like  some  philosophical 
or  moral  writings,  they  were  made  designedly  obscure,  in  order  to 
veil  the  writer's  meaning  from  careless  or  hostile  interpreters. 
But  generally  speaking,  the  more  formal  the  writing,  the  narrower 
must  be  the  limits  of  interpretation.  This  is  evidently  the  ground 
for  the  distinction  that  deeds  are  to  be  less  liberally  interpreted 
than  wills.  The  moderate  rule  of  the  Digest  —  In  lestamentis plenius 
rnluntates  testantium  secutamur  —  acquires  a  tinge  of  contempt  in 
the  mouths  of  clerical  judges  —  Testamentorum  henignce  faciendce 
sunt  interpretationes  j^ropler  simplicitatem  laicorum ;  and  no  one 
familiar  with  the  history  of  will-construction  can  doubt  that  the 
liberality  of  interpretation  which  distinguishes  the  decisions  of 
ancient,  as,  for  instance,  of  Elizabethan  times,  was  the  result  quite 
as  much  of  contempt  for  the  letter,  as  of  reverence  for  the  spirit. 
The  increased  and  increasing  strictness  of  construction  is  in  great 
part  due  insensibly  to  the  greater  precision  winch  the  language 
itself  has  acquired,  and  to  the  more  general  possession  of  the  power 
to  use  it  correctly ;  interpreters  are  bound  to  give  writers  credit  for 
meaning  what  they  say,  instead  of  making  them  say  what  it  seems 
probable  they  would  be  likely  to  mean. 

The  other  limit  of  interpretation  of  which  I  have  spoken  is  the 
result  of  the  necessity  of  there  being  a  sufficient  written  expression; 
the  meaning  of  the  words  cannot  be  added  to  or  corrected  beyond 
a  certain  point,  or  the  words  cease  to  be  capable  of  bearing  the 
interpretation  to  be  put  on  them;  and,  though  the  intent  may  be 
known,  there  is  no  expression  in  which  it  can  clothe  itself.  It 
cannot  be  too  often  repeated  that  legal  interpretation  is  not  a  mere 
ascertaining  of  the  intent  ;  it  acts  only  by  putting  a  meaning, 
consistent  with  the  intent,  upon  the  words.  And  the  answer  to 
the  question,  What  is  a  sutncient  written  expression?  will  vary 
largely  with  different  classes  of  writings,  and  under  different  sys- 
tems of  jurisprudence.  In  this  respect  it  is  manifest  that  private 
documents  nnist  be  interpreted  more  strictly  than  public.  A  deed 
or  will  made  by  a  private  person  is  made  with  the  knowledge  of 
the  command  of  th(^  law,  which  requires  the  writer  to  express 
himself  fully  and  completely,  and  gives  validity  to  the  instrument 
only  on  the  condition  of  reasonable  compliance  with  the  demand 
which  it  has  imposed.  On  the  other  hand  a  document,  such  as  a 
treaty,  wiiicli  as  to  its  form  is  almost  wholly  independent  of  every- 
thing but  the  will  of  the  contracting  parties,  leaves  the  amount  of 
the  expression  much  less  determinate  ;  and,  although  an  intention 


ON  THE   PRINCIPLES   OF   LEGAL   INTERPRETATION.      603 

must  fail  of  effect  which  has  no  corresponding  expression  of  any 
kind  in  the  document,  yet  tlie  interpreter  must  resort  very  much  to 
the  inferred  will  of  the  parties  themselves  for  a  criterion  of  suffi- 
ciency of  expression,  which  thus  becomes  almost  merged  in  the 
general  inquiry  after  the  probable  intention  —  meaning,  as  I  do, 
by  intention,  wherever  it  occurs  in  this  paper,  not  a  mere  inchoate 
act  of  the  mind,  that  which  a  person  intended  to  do,  but  took  a 
step  towards  doing,  but  something  which  as  a  mental  act  was 
complete,  and  which  the  writer  endeavored  to  express  by  the 
words  he  made  use  of,  although  those  words  in  fact  express  his 
meaning  more  or  less  imperfectly. 

In  the  interpretation  of  wiitings  where  the  latitude  allowed  to 
the  interpreter  is  considerable,  and  particularly  where  direct  evidence 
of  intention  not  contained  in  the  wi-iting  is  admitted,  the  question  of 
what  is  a  sufficient  written  expression  becomes  evidently  of  great 
practical  importance.  If  a  perfectly  definite  intent  can  be  collected 
by  the  aid  only  of  collateral  evidence  of  it,  coupled  with  the  mean- 
ing of  the  words,  it  is  probable  that  the  latter  element,  that  of  the 
meaning  of  the  words,  bears  a  sufficiently  great  propoi-tion  to 
the  former,  to  assure  the  interpreter  that  the  words  will  bear  the 
meaning,  and  express  it  sufficiently.  But  this  security  does  not 
exist  where  parol  declarations  of  intention,  for  example,  are  admis- 
sible. The  undoubted  fact  that  no  general  definition  of  what  is  in 
such  cases  a  sufficient  expression  can  be  fixed  upon  beforehand,  is 
made  use  of  by  Sir  James  Wigram  as  a  constant  argument  against 
admitting  evidence  of  intention  generally.  '"Once  admit,"  says 
he,^  "that  the  person  or  thing  intended  by  the  testator  need  not 
be  adequately  described  in  the  will,  and  it  is  impossible  to  stop 
short  of  the  conclusion  that  a  mere  mark  will  in  every  case  supply 
the  place  of  a  proper  description."  Surely  there  is  no  impossi- 
bility such  as  here  contended.  It  is  reasonable  to  say,  that  if  a 
testator,  for  instance,  describes  a  person  by  his  surname  and 
Christian  name,  that  is  a  sufficient  description  to  satisfy  the  letter 
of  the  law,  though  it  may  in  fact  be  insufficient  completely  to 
identify  the  person  intended.  If,  on  the  other  hand,  a  testator 
s  ould  say,  "I  give  so  and  so  to  my  sn?!,^'  when  he  has  nine  sons, 
it  would  probably  be  right  to  decide  that  such  a  description  was 
not  a  sufficient  one,  since  it  was  one  which  the  writer  must  have 
known,  or  ought  to  have  known,  would  prove  ambiguous,  and  to 
allow  of  an  addition  to  which  by  parol  testimony  would  be  to  offer 
1  Page  128   [sect.  158]. 


604  APPENDIX  C. 

a  great  temptation  to  perjury.  It  is  evident  that  a  line  must  be 
drawn  somewhere,  and  when  necessary  it  will  doubtless  be  drawn 
in  practice  ;  but  as  yet  the  boundary  of  testamentary  interpreta- 
tion on  this  side  is  somewhat  imperfect,  and  there  is  no  rule  for- 
bidding the  introduction  of  parol  testimony  of  intention  to  fill  up 
even  such  a  manifestly  inadequate  description  as  that  1  have  last 
supposed. 

Many  questions  on  the  sufficiency  of  expression  arise  upon  the 
interpretation  of  informal  writings,  as,  for  instance,  contracts,  — 
what  part  of  a  contract  required  by  law  to  be  in  writing  need  be 
expressed  in  the  writing  ;  how  far  usages  and  customs  of  trade 
may  be  imported,  and  the  like.  In  fact,  all  the  most  difficult 
problems  of  interpretations  arise  upon  the  limits  of  it,  upon  the 
extent  to  which  the  meaning  of  words  may  be  modified  by  other 
signs  of  intent  ;  upon  the  contest,  in  short,  as  it  is  often  termed, 
between  the  letter  and  the  spirit.  Into  the  principles  which  ques- 
tions of  this  nature  involve,  I  will  not  at  present  enter  more  mi- 
nutely. They  will  suggest  themselves  in  relation  to  the  different 
classes  of  legal  writings  to  any  one  who  clearly  appreciates  tbe 
real  nature  of  the  process  of  what  1  have  called  inferential  inter- 
pretation, a  process  in  reality  simple,  and  which,  like  reasoning,  is 
practised  correctly  every  day  by  persons  who  have  never  considered 
what  it  is  they  do  when  they  perform  it,  but  which  can  never 
be  understood  so  long  as  it  is  confounded  with  the  mere  grammar 
and  dictionary  operation  of  ascertaining  the  meaning  of  words. 
One  consideration,  however,  I  will  not  pass  over.  I  mean  the 
great  diffei-ences  which  exist  in  the  measui-e  of  interpretation  as 
applied  under  different  judicial  systems  and  by  different  judicial 
minds,  and  the  consequent  necessity  for  accumulating  a  certain 
mass  of  decisions,  In  order  to  supply  a  uniform  standard,  and 
to  fix  the  nearest  approach  to  absolute  correctness  by  striking 
an  average  of  opinions  through  a  long  series  of  years.  It  is  some- 
times said,  in  relation  particularly  to  testamentary  interpretation, 
that  authorities  can  be  of  no  service  :  that  to  quote  cases  is  to 
construe  one  man's  nonsense  by  another  man's  nonsense,^  and  that 
all  a  judge  has  to  do  is  to  read  the  writing  and  endeavor  to  make 
out  from  it  the  meaning  of  the  testator.  Now,  if  interpretation 
were,  like  the  determination  of  the  meaning  of  words  whose  signifi- 

1  ["  The  nonsen.so  of  one  man  can  furni.sh  no  rule  for  understanding 
tlic  noiiseiiso  of  anotlier."  Dunning  (Lord  Asliburtou),  citod  in  Evans's 
Deciuious  of  Lord  Mansfuld,  i.  284.  —  J.  B.  T.] 


ON  THE  PRINCIPLES  OF  LEGAL  INTERPRETATION.      605 

cation  is  fixed,  something  that  can  be  done  with  absolute  certainty, 
in  which  one  man  would  come  to  the  same  conclusion  as  another, 
and  which  is,  so  to  speak,  the  same  all  tlie  world  over,  the  study  of 
previous  authorities  might  indeed  be  unnecessary.  But,  in  truth, 
it  would  be  as  reasonable  to  say  that  no  authorities  were  to  be 
consulted  on  a  question  of  equity;  that  a  judge  ought  to  act  upon 
his  own  notions  of  what  was  equitable  ;  and  that  as  circumstances 
are  infinitely  various,  one  case  could  never  show  what  it  was  right 
to  do  in  another.  Experience  shows  that  the  limits  of  interpreta- 
tion will  be  fixed  at  very  dilferent  points  by  different  persons  ;  and 
there  is,  perhaps,  no  legal  subject  which  brings  out  peculiarities  of 
individual  bias  and  disposition  more  strongly  than  difficult  prob- 
lems of  construction.  By  the  combined  result  of  the  decisions  of 
a  succession  of  judges,  each  bringing  his  mind  to  bear  on  the  views 
of  those  who  preceded  him,  a  system  of  interpretation  is  built  up 
which  is  likely  to  secure  a  much  nearer  approach  to  perfect  justice 
than  if  each  interpreter  wei-e  left  to  set  up  his  own  standard  of 
how  far  it  was  right  to  go  in  supplying  the  defective  expression,  or 
of  what  amounted  to  a  conviction  of  the  intent  as  distinguished 
from  mere  speculative  conjecture.  Rules  of  construction  are.  mat- 
ters the  expediency  of  which  may  be  more  doubtful  ;  but  that 
principles  of  construction  there  must  be  in  every  system  of  rational 
interpretation,  and  that  these  are  only  to  be  gathered  by  a  compar- 
ison of  a  large  number  of  important  cases,  and  by  striking  the 
average  of  a  large  number  of  individual  minds,  will  not,  I  think, 
be  denied  by  any  one  who  considers  interpretation  to  be  as  I  have 
described  it,  a  process  of  reasoning  from  probabilities,  a  process  of 
remedying,  by  a  sort  of  equitable  jurisdiction,  the  imperfections  of 
human  language  and  powers  of  using  language,  a  process  whose 
limits  are  necessarily  indefinite  and  yet  continually  requiring  to  be 
practically  determined,  —  and  not,  as  it  is  not,  a  mere  operation 
requiring  the  use  of  grammars  and  dictionaries,  a  mere  inquiry 
into  the  meaning  of  words. 


INDEX. 


• 

ACCUSED  PERSONS, 

hardships  of,  157-161,  163. 

mercy  to,  157-161,  163. 
ACCUSING  JURY,  65,  81-84,  113,  124,  149,  180. 

informed  privately  by  judge,  124. 

members  of,  on  petit  jur}',  80,  81. 

private  deliberation,  right  of,  nearly  lost,  180  n. 
ACTIONABILITY   OF   CONTRACTS,   404. 
ACTIONS   ON   THE   CASE,  66. 
ACTOR, 

how  to  determine,  370-376.     See  Affirmative  Case. 

relation  of,  to  duty  of  establishing,  369,  370,  377,  378,  382. 
ADMISSIBILITY   OF  EVIDENCE, 

common  misconceptions  about,  269. 

tests  of,  266,  268,  435,  446,  448. 
ADMISSIONS   OF   RECORD,  128  n. 
AETATE  PROBANDA,   writ  of,   19. 

AFFIRMATIVE    CASE,    371.      See    Actor;    Burden    op    Proof; 
Establishing. 

changes  in  law,  effect  of,  376. 

evidence,  not  determined  by  rules  of,  371. 

practical  convenience  as  a  test  of,  376. 

substantive  law  of  case  determines,  372-376. 
AGE, 

inspection,  tried  by,  19. 

proof  of,  520. 

witnesses,  tried  by,  18-21,  104. 
AGREED  STATEMENT  OF  FACTS.  See  Case  stated;  Procedure. 
ALIBI,  burden  of  proof  on,  363. 

AMBIGUITIES,  407,  417-426,  448,  466,  471,  472. 
in  Roman  law,  421,  422. 


608  INDEX. 

AMBIGUITY, 

burden  of  proof,  as  to,  376-384.     See  Burden  of  Pboof. 

latent,  422-426. 

patent,  416,  422-426,  448,  472,  473,  599-600. 
two  sorts  of,  424. 
AMES  quoted,  375. 

ANCIENT   MATTERS,   proof  of,  520,  521. 
ANGLO-SAXON   PROCEDURE,  52. 
ANNEXING   INCIDENTS   TO    WRITING,  409. 
APPEALS,   criminal,  65,  68,  156,  157. 

finality  of,  156,  157. 
APPLICATION   OF  LAW   TO   FACT,  193,  201,  251-253. 
ARGUMENT.     See  Reasoning. 
ARNOLD,   Dr.,  quoted,  181. 
ASS  A  CHE,  the,  in  Wales,  28. 
ASSISA,  definitions  of,  57,  58.     See  Assize. 
ASSIZE   of  Arms,  58,  59. 

of  Clarendon,  26,  36,  89,  58,  61,  68. 

of  the  Forest,  58,  59. 

of  Northampton,  57,  58. 
ASSIZE,  Grand,  41,  42,  45,  55,  62,  63,  70,  95,  100,  141. 

attaint  in,  none,  141. 

consent  of  demandant,  70. 

finality  of,  140-143. 

number  of  jury  in,  46,  86. 

oatii,  form  of,  101. 

procedure  in,  45,  46,  62,  113. 
ASSIZES.  41,  53,  57-66. 

possessory,  63,  64,  140,  143. 

See  Consent  ;  Darrein  Presentment  ;  Henry  TI.  ;  Mort  d'An- 
cestor;  Novel    Disseisin;   Utedm. 
ASSUMPTION.     See  Presumption. 
ATTAINT,  tlie,  101,  109,  137-160,  180. 

American  colonies,  in,  174. 

appeals,  in,  156,  157. 

complained  of,  149. 

criminal  cases,  in;  156,  159,  161,  102. 

cumbrous  nature  of,  150. 

decay,  causes  of,  150-153. 

demurrers  upon  evidence,  relation  to,  237,  238. 

evidence,  new,  jury  could  have  none,  107,  138,  154. 

extension  of,  14(!-149,  157. 

Gnind  Assize,  in,  41,  141. 

jury  of,  95,  149. 

Mirror,  the,  on,  147. 

mitigation  and  end  of,  138-140,  151-154. 


INDEX.  609 

ATTAINT  —  continued. 

origin  of,  140-144,  146,  151. 

payment  to  obtain,  143. 

possessory  assizes,  in,  140,  141,  143. 

power  of,  in  eontrolling  jury,  410,  429,  430. 

proceedings  in,  regulated,  14'J,  150. 

punishment  in,  140,  151. 

reversal  of  original  judgment,  involved,  140,  153. 

severity  and  unpopularity  of,  lo8,  139,  150. 

special  verdict  in  154,  332. 

witnesses  to  petit  jury,  effect  of  introducing,  137,  138,  150. 
ATTESTED   WRITINGS.     See  Wkitings. 
ATTESTING   WITNESSES.     See  Witnesses. 
AUSTIN   quoted,  251,  343. 
"AUTHENTIC"   WRITINGS,  107. 
AZO,  scholastic  question  of,  418. 


BACON,  Lord,  quoted,  151. 

BACON,  Theodore,  quoted,  532. 

BACON'S   MAXIM,  422-426,  471-474,  482,  599,  600. 

ignorant  use  of,  473. 

originated  with  him,  423. 

perverted  use  of,  473. 

slow  in  reaching  the  profession,  423,  424,  425,  471. 

unprofitable,  42,  472. 
BAR,  trial  at,  95,  96. 
BARRISTERS,   English,  239,  528. 
BASTARDS,  punishing  mothers  for  death  of,  179. 
BATTLE,  trial  by,  7,  39-47,  64. 

Anglo-Saxons,  not  known  to,  39. 

champions  in,  43. 

end  of,  45. 

England,  hated  in,  40. 

Glanvill  on,  42. 

jury  trial  promoted  by,  41. 

ordeal,  whether  a  form  of,  39. 

procedure  in,  42-45. 

small  resort  to,  42. 
BEHEADING    WITHOUT   TRIAL,  71.     See  Mainour, 
BENTHAM, 

fact,  on,  191. 

quoted,  544,  547. 
BEST  quoted,  488. 
BEST   EVIDENCE,  257. 

Best's  view  of,  487,  488. 

39 


610  INDEX. 

BEST   EVWE'SC'E— continued. 
Burke  on,  492. 

Christian  on,  493,  494,  496,  507. 
circumstantial  evidence,  as  applied  to,  496,  497. 
Gilbert's  view  of,  490,  491,  497,  506. 
great  scope  of,  484. 
Greenleaf  s  view  of,  484-487. 
guiding  principle,  contains  a  sound,  507. 
Hardwicke,  Lord,  on,  491,  492,  506. 
Holt,  C  J.,  on,  489,  507. 
law  writers  on,  497. 
origin  and  development  of,  489,  497. 
rule  of  the,  398,  484. 

substitutionary  evidence,  as  a  rule  against,  486,  490,  497,  506. 
things,  as  applied  to,  496. 
useful  phrase,  no  longer  a,  505-507. 
writings,  mainly  a  rule  about,  488. 
BEWEISURTHEIL,  the, 
BIGELOW  quoted,  52. 
"  BILL  "  described,  148. 
BONNIER  quoted,  185,  369. 
BLACKSTONE  quoted,  .32,  95,  491. 
BROWNE,  Henry,  will   of,   415. 
BRUNNER, 

jury,  on  the,  3. 

quoted,  11,  18,  41,  47,  55,  85,  86,  393. 
BULLER'S   NISI  PRIUS,  471. 

BURDEN  OF  PROOF,  10,  348,  353-390,  485,  552,  563-565,  558,  559. 
actor,  relation  to,  369,  370. 
alibi,  on,  3G3,  376. 
alterations  in  writings,  as  to,  527. 
ambiguities  as  to,  376-384. 
ambiguity  of  term,  ,354-364. 
beginning,  duty  of,  362,  377. 
Best  on,  358. 

criminal  cases,  in,  302,  363,  382,  383. 
ejcftmeiit,  in,  381. 

establishing  issue,  duty  of,  865-357,  369,  370,  372-376. 
evidence,  not  a  topic  in  law  of,  353,  388,  389. 
game  laws,  in  cases  under,  359. 
going  forward,  meaning  duty  of,  355,  357-359. 
Massachusetts  use  of,  355,  379,  .386-.388. 
meanings  of,  different,  3.'J5. 

<;hoice  among,  recommended,  886,  387. 
illustrations  of,  355-364. 
Middle  Ages,  in,  .3.54. 
I'arke  (Baron)  on,  362. 
pleading,  relation  to,  353,  364,  370-370,  378. 


INDEX.  611 

BURDEN   OF   FHOOY  — continued. 

presumptions,  relation  to,  380,  386,  542-546. 

prima  facie  case,  fixed  by,  357. 

reasoning,  relation  to,  353,  388-389. 

reasons  for  using  one  or  the  other  of  usual  meanings,  385,  386. 

record,  on  the,  378. 

reus,  relation  to,  3f)9,  370-376. 

Roman  law,  in,  353,  354,  364. 

sanity,  as  to,  381-.383. 

sliifting  of,  355,  361,  365,  366,  370,  378,  379,  383. 

Stephen  on,  3,  6. 

term,  cannot  abandon  the,  385. 

terminology,  proper,  .384-387. 

tests  of,  376. 

undiscriminated  meaning,  an,  355,  359-364,  542-544. 
See  Actor;  Affirmative  Case. 
BURKE  quoted,  492. 
BUSHELL'S   CASE, 

as  to  fining  jury,  166-160. 
BUSINESS   WITNESSES,  17,  100,  102. 


CANON  LAW,  influence  of,  in  reforming  procedure,  55  n. 

CALENDAR,  judicial  notice  of,  291-294. 

CARTA,  393. 

CASE,  actions  on  the,  66. 

stated.     See  Procedure. 
CASUAL   WITNESSES,  12.3. 
CERTIFICATIO,  the,  145. 

CHALLENGE   OF  JURORS,  82,  90,  95,  123,  171. 
CHALLENGES,  trial  of,  123. 
CHAMPION,  the,  40,  43,  44. 

a  complaint  witness,  43. 
CHANCERY,  406,  408. 

CHANGES   IN  LAW.     See  Growth  of  Law;  Substantive  Law. 
CHARACTER  EVIDENCE,  525. 
CHARGE  of  judge  to  jury,  112-114. 
CHARTERS.     See  Documents. 
CHATTELS.     See  Ownership. 
CHOATE,  Rufus.  quoted,  553. 
CHEYNEY'S  CASE,  416,  420,  422,  42.3,  425,  432. 
CHRISTIAN  quoted,  493,  494,  541. 
CIRCUMSTANTIAL   EVIDENCE.     See  Evidence. 
CHRONICLES,  54. 


612  INDEX. 

CIVIL  LAW,  the,  130. 

CIVILIZATION,  ancient  and  modern,  181. 

CLARENDON,  Assize  of,  26,  36,  39,  58,  61,  68. 

Constitutions  of,  57. 
COCKBURN,  C.  J.,  on  facts  for  court,  202. 
CODIFICATION,  611. 

COFFIN  V.  U.  S.,  as  to  presumption  of  innocence,  337,  551,  566-576. 
COKE,  quoted,  32,  54,  135,  159. 

trial  by  jury,  account  of,  135. 
COLLATERAL  ATTACK  ON  JUDGMENT,   118.     See  Judgments. 

COLOR,  in  pleading, 

explanation  of,  232. 

morality  of,  233. 
COMBINING  JURIES,  9.3. 
COMMUNITY   WITNESSES,  100,  102. 
COMPLAINT   WITNESSES,  10-17,  43. 
COMPULSORY   PROCESS, 

compurgators  and  casual  witnesses,  none  against,  102,  129. 

witnesses,  introduced  against,  102. 
COMPURGATION,  25,  26,  39,  129. 

abolition  of,  in  criminal  cases,  69. 

highly  formal, 25. 

See  Trial  by  Oath  ;  Wager  of  Law. 

CONCLUSIVE   EVIDENCE,  180,  257. 

CONSCIENCE   OF   COURT,  informing,  4.31. 

CONSENT, 

assize  or  jury,  to  have,  68-81,  143,  147,  156. 

parties,  of,  247. 
CONSIDERATION, 

illegality  of,  40G. 

negotiable  paper,  want  of,  374-376. 

specialty,  375. 
CONSPIRACY,  actions  for,  221.     See  Maintenance. 
CONSTITUTIONAL  LAW,  210  n. 
CONSTITUTIONS   OF   CLARENDON,  57. 
CONSTRUCTION, 

contracts,  of  mercantile,  419. 

court,  reasons  why  belongs  to,  206,  207. 

ecclesiastical  courts,  effect  on,  436. 

equity  courts,  effect  on,  429,  4.36. 

evideiu-e,  does  not  belong  to  law  of,  411,  445,  446. 

extrinsic  facts,  must  consider,  411-414,  419,  426-429,  470. 

fact  for  court,  is  (|uestion  of,  203. 

faithful,  imiiortancc  of,  536. 

judicial  notice  of,  28G-29I. 


INDEX,  613 

CONSTRUCTION  —con^mwerf. 

law,  said  to  be  question  of,  203,  216. 
meaning;  of  words,  rules  of,  as  to,  419. 
mercantile  law,  effect  on,  43G. 
nature  of,  411. 
pleadings,  3-52,  333. 

rules  of.  alleged,  460,  461,  46G,  467,  470. 
differences  in  applying,  460,  463. 
nature  of,  316,  388. 
special  verdicts,  332,  333. 
statutes,  215. 

Wigram's  book,  is  real  subject  of,  405. 
wills,  401,  414,  577. 

cannot  add  orally  to,  415. 
writings,  203-207,  215,  259,  410. 

See  Evidence  ;  Extrinsic  Evidence;  Intention;  Inteepeeta- 
TioN  ;  Mistakes;  Parol  Evidence. 
CONSUETUDINES,  50. 
CONTROL   OF  JURY,  137-181. 
COUNCIL.     See  Lateran. 

COUNSEL,  unsworn,  state  facts  in  evidence  to  jury,  120-122. 
COURT.     See  Judges. 
COURT   AND  JURY,  183-262,  514. 

See  Judge  ;  Jurt  ;  Law  and  Fact. 
CRIMINAL  APPEALS,  65,  68,  156,  157. 
CRIMINAL   CASES, 

attaint,  whether  any,  156,  162. 

consent  of  accused  to  jury,  69,  156. 

defence,  no  right  to  full,  157. 

defendant,  duty  of,  as  to  proof,  363. 

Henry  III.,  writ  of,  as  to  modes  of  trial  in,  37 

jury  in,  64,  65,  68-74,  81-84. 

checks  on,  160,  168. 
mercy  in,  157. 
new  trials  in,  163. 

development  of  existing  rules  as  to,  175-179. 
in  United  States,  179. 
ordeal  in,  abolished,  69. 
witnesses  for  accused  in,  157-161. 
allowed,  but  not  sworn,  157. 
none  allowed,  157. 
CRIMINAL   LAW, 

feeble  administration  of,  551. 
innocence,  presumption  of,  551-576. 
CURTESY,  doctrine  of,  120,  333. 
CURTIS,  B.  R.,  on  Massachusetts  practice,  379. 


614  INDEX. 

DANA,  R.  H.,  quoted,  364. 

DARREIN  PRESENTMENT,  assize  of,  59,  60. 

DEATH, 

presumption  of,  319-324,  348. 

trial  by  witnesses,  18,  23,  24. 
DECEASED   PERSONS,  declaration  of,  521. 

DEEDS, 

jury,  whether  could  find,  without  evidence,  105-109. 
witnesses  added  to,  97-102. 

profert  of,  106. 
DEFAMATION.    See  Libel  ;  Slander. 
DEFENCES,  equitable,  406. 

fines,  to,  407. 

new,  405. 
DEFENDANT.     See  Reus. 
DEFINITIONS,  189,  213,  250,  317. 

evidence,  264. 

evidence,  law  of,  263. 

fact,  190-192. 

law,  192,  193,  201,  215. 
DEMURRERS   UPON  EVIDENCE,  121,  122,  234-239,  260. 

Bacon  on,  234. 

Gibson  v.  Hunter,  effect  of  rule  in,  235. 

mistakes  about,  237. 

nature  and  effect  of,  235-238. 

obsolete,  mainly,  238. 

questions,  two,  in,  234. 
DEODAND,  113. 

DEPOSITIONS,  489,  495,  498,  529. 
DIRECT   STATEMENTS   OF  INTENTION  IN   INTERPRETING 

DOCUMENTS.     See  Intention;  "  Parol  Evidence  "  Rule. 
"DISCRETION"   OF  JUDGES,  214,  505,  526,  537. 
DOCUMENTS,  13,  16. 

produced  to  jury,  104-112. 

See  Writings. 
DOMESDAY   BOOK,  42,  50,  51. 
DOUBT.     See  Reasonable  Doubt. 
DOWER,  102. 

DUEL,  the  jtidicial,  7,  40,  41.     See  Battle. 
DUODECfMA    MANU,  explained,  14. 

ECCLESIASTICAL  COURTS,  a  liberalizing  influence  in  interpreta- 
tion, 436. 
ECCLESIASTICS,  tried  by  jury,  67. 


INDEX.  615 

EMLYN  quoted,  87. 

ENGLISH    JUDGES     AND     BARRISTERS.       See     Barristers; 
Judges  ;  rRocEDUUE. 

EQUITABLE   DEFENCES,  406. 
EQUITY,  406,  418. 
courts  of,  599. 

evidence,  as  to  receiving,  429,  431,  436. 
freedom  in  interpretation,  429. 
influence  of,  in  promoting  new  trials,  172. 
rebutting  an,  437-440. 

EQUIVOCATION,  407,  417-426,  432,  448,  465,  478,  480,  596-598. 

Bacon's  maxim  as  to,  422-426. 

doctrine  about,  596-598. 

receiving  direct  statements   of  intention  in,  explanation  of,  440- 
445. 

Roman  law,  in  422,  599. 
EELE,  J.,  quoted,  318. 
ERSKINE  quoted,  509. 

ESTABLISHING,  burden  of,  355-357. 

determine,  how  to,  370-376. 

ejectment,  in,  381. 

presumptions,  effect  of,  in  fixing,  384. 

presumptions,  relation  to,  380-386. 

See  Actor,  Affirmative  Case;  Burden  of  Proof. 
ESTOPPEL,  540. 

judicial  legislation,  a  means  of,  318. 

jury,  on,  127,  128. 
EVANS,  W.  D.,  345. 

EVIDENCE, 

admissibility  of,  392,  468,  469,  529. 

determined  by  pleading  and  procedure,  rules   of  construction, 
and  substantive  law,  266,  268,  269,  43-5,  446,  448,  515,  516. 
circumstantial,  as  related  to  Best  Evidence  rule,  496,  497. 
circumstantial,  relation  of  hearsay  rule  to,  501. 
conclusive,  180,  257. 
continental  methods  in,  343-345. 
continental  systems,  1. 
counsel's  unsworn  statements  as,  120-122. 
defined,  264,  -527. 
demurrer  upon,  121,  122,  234-2-39. 

leaves  open  no  question  of  evidence,  236.     See  Best  Evidence. 
depositions.'    See  Deposition. 
documents  ns,  106-112. 
fact  and  law,  distinguisiied  from,  197,  202. 
excluding  principles  of  evidence,  516-518. 
excluding  rules  of  evidence,  264,  268,  520. 

courts  of  equity,  as  to,  429-436,  508. 


616  INDEX. 

EVlD'E'NCE—cnntintied. 

excluclin<r  rules  of,  historical  review  as  to,  415-440. 

interpretation,  only  one  in,  414,  444,  482,  483. 

modern  cases  as  to,  449-468. 

nature  of,  488. 
e.xtrinsic,  meaning  of,  392. 
impeachment  cases,  in,  493,  494. 
intention,  of,  413,  521. 

direct  statements  of,  414,  432-435,  440-446,  455,  456. 

Wigram's  use  of  plirase,  448. 
interpretation.     See  Construction  ;  Legal  Interpretation. 
jury  always  had  some,  119. 
law  of,  2. 

affirmative  case,  not  determined  by,  371. 

alleged  antiquity  of,  493. 

beginnings  of,  111. 

changes,  suggested  in,  529-538. 

foreign  matter,  extrusion  of,  531,  534. 
judges'  control,  freer  use  of,  530,  531,  533,  534. 
jury  trial,  narrowing  of,  534,  535. 
legislation  needed,  531-533. 
some  instances  of,  532. 
principles,  governing,  536. 
rules  of  court,  extension  of,  531. 
simplicity,  greater,  529. 

character,  as  to,  525. 

characteristic  quality,  of,  3,  4,  264,  509. 

construction,  not  included  in,  411,  417. 

defects  in,  527. 

defined,  265,  391,  .392. 

Erskine  on,  509,  510. 

existing,  great  bulk  of,  511. 

Greenleaf  on,  508,  509. 

hearsay,  as  to.     See  Hearsay. 

judicial  notice,  not  included  in,  5. 

jury,  relation  to,  2,  410,  5.35. 

Maine,  Sir  Henry,  on,  508. 

misconceived,  often,  2G9,  508,  511-518. 

modernness  of,  493,  514. 

nature  of,  2-4,  180. 

non-legal  stand.ards  in,  510-518. 

offshoot  of  the  jury,  180. 

opinion,  as  to,  519,  52.3-525. 

present  and  future  of,  508,  538. 

I)rinciples  of,  few,  511. 

j.rinciplcs,  fundanu'ntal,  261,  265,  536. 

rational  system,  a,  270. 

reforms  in,  495.  525-538. 

rostalenuTit  of,  needed,  511. 


INDEX.  617 

EVIDENCE  —  continued. 

law  of,  slight  and  remote  evidence,  forbids,  517,  525. 

Stephen's  view  of,  20(3. 

substantive  law  confused  with,  405-409,  512-516.     See  Substan- 

'     TiVE  Law. 

things  not  covered  by,  5. 

waiving  application  of,  right  of,  535. 
parol,  890. 

meaning  of,  392.     See  Parol  Evidence  Rule. 
preponderance  of,  330. 

presumptions  are  not,  313,  337,  560-564,  574-576. 
primary  and  secondary,  487,  494,  505. 
record, 

entering  on,  in  pleading,  114-120. 

matter  of,  wiietlier  evidence  necessary  to  find,  109. 
weight  of,  not  fixed  by  rules  of  presumption,  336,  558,  576. 
Wigram's  book  on.     See  Wigram.  • 
witnesses  publicly  giving  to  jury,  122-139. 
written,  meaning  of  term,  392. 
EXCEPTIO,  use  of  jury  in  trying,  59,  68,  70. 

EXCEPTION  TO  EXCLUDING  RULE  AS  TO  INTENTION.    See 
Equivocation. 

EXCEPTIONS,  bill  of, 

America,  very  common  in,  529. 

England,  long  unusual  in,  now  abolished,  239,  529. 
EXCLUDING  PRINCIPLES   OF   EVIDENCE,  516-518. 
EXCLUDING   RULES   OF  EVIDENCE,  264,  268,  529. 
EXECUTOR,  right  to  personalty.  437-440. 
EXPERT    WITNESSES,  196,  262,  524. 
EXPRESSION,  a  sufficient,  411-413,  586,  598,  602-604. 
EXTRINSIC   EVIDENCE.  See  Parol  Evidence. 

facts,  in  interpretation,  must  be  considered,  411-414,  419,  426-429 
451. 


FACT, 

definition  of,  190-192. 

evidence,  discriminated  from,  197. 

experts,  for,  196. 

inferences  of,  194. 

issues  of,  for  court,  184,  185,  202,  216,  226. 

for  jury,  184. 
opinion,  relation  to,  524. 
presumptions  of.     See  Presumptions. 
separating  matter  of,  from  law,  118. 
ultimate,  192,  201. 
FACT  AND   LAW.    See  Law  and  Fact. 


C18 


INDEX. 


FA  CTUM  of,  domestic  law,  258. 
foreign  law,  258. 
will,  476. 

FALSE   IMPRISONMENT,  actions  for,  221. 

FALSE  JUDGMENT,  104. 

FAMILY   HEARSAY,  520. 

FELLOW   SWEARERS,  225. 

FINALITY  OF  DUEL  and  its  substitutes,  140-143,  156,  157. 

FINCH  quoted,  187. 

FINES,  40,  407,  408,  410,  418. 

statute  of,  407,  410,  418,  420. 
FINING   JURY,  139,  155 

for  disregarding  evidence,  162-168. 
FISC,  privilege  of  the,  11. 
FORE-OATH.  10,  24. 
FORM,  requirement  of,  395. 
FORMALISM,  in  early  law,  9,  25,  59,  142. 
FORTESCUE,  account  of  trial  by  jury,  130-132. 
FRAUD,  defence  of,  407,  408. 
FRAUDS,  statute  of,  180. 

GAME   LAWS,  burden  of  proof  under,  359. 

GASCOIGNE,    C.   J.,  questioned  by  Henry  IV.,  291. 

GAVELET,  statute  of,  18. 

GENERAL  ISSUE,  109. 

GILBERT  quoted,  496,  548. 

GLANVILL,  41,  50,  53,  61-66. 

GOING   FORWARD   with  evidence, 

discretion  of  court  as  to,  370. 

duty  as  to,  377. 

effect  of  presumption  on,  383. 

See  Burden  of  Proof. 
GOUDSMIDT  quoted,  361. 
GRAND   ASSIZE.     See  Assize. 

GRAND  JURY.     See  Accusixg  Jury;  Attaint  Jury. 
GREENLEAF  quoted,  390,  484,  486. 

GROWTH  OF  THE   SUBSTANTIVE  LAW,  effect  of,  on  procedure 
and  evidence,  40.'j-409. 

HALE,  Sir  .M.,  quoted,  156,  ICl,  105,  FO. 

HAWKINS,   F.  Vaugh.Tn,  quoted,  405,  412,  414,  439,  442,  444,  447. 
legal  interpretation,  on,  577-605, 

ambiguity,  Bacon's  maxim  as  to,  599,  600, 


INDEX.  619 

HAWKINS  —  continued. 

legal  interpretation,  civil  law  system  of,  578-580. 
common  law  system  of,  599. 
equity,  interpretation  a  sort  of,  587,  598. 

system  of  interpretation,  699. 
expression,  perfect,  not  essential,  586. 

a  "  sufficient,"  only,  needed,  698,  602-604. 
inferential  and  literal,  588,  600. 
intention  in, 

evidence  of,  intrinsic  and  extrinsic, 
circumstantial,  591-593. 
direct,  590,  591. 
expression,  and,  681. 
extrinsic  expressions  of,  direct,  599,  603. 
meaning  of,  582,  601-602. 

words  and  other  signs  of,  690,  694. 
interpretation  clause,  686. 

judicial  decisions,  importance  of  accumulating,  604,  605. 
language, 

imperfection  of,  585. 
nature  of,  582-685. 
limits  of,  589,  600-602. 
means  employed  in,  690. 
object  and  nature  of,  580,  687,  589. 
occasion  for,  584. 
peculiarity  of,  580,  582. 
pleading,  599. 
Roman  law,  in,  579. 

writings,  different  classes  of,  577-580,  600-604. 
HEARSAY,  268  n.,  498-501,  518-528. 
circumstantial  evidence,  as,  501. 
exceptions  to,  519. 
HEARSAY   RULE, 

exceptions  to,  520-623. 
family  reputation,  as  to,  620. 
reputation,  as  to,  520. 
restatement  of,  522. 
writings  as  exceptions  to,  620. 
HENRY  XL, 

assizes  and  legislatioii  of,  58,  55,  58-65,  141. 
charters,  quoted  as  to,  18,  106. 
HENRY  IH.,  writ  of,  as  to  mode  of  trial  in  criminal  cases,  37. 
HENRY   IV.,  Gascoigne,  C.  J.,  questioned  by,  283. 
HISTORICAL   SOURCES  as  to  jury,  50. 
HOLLAND   on   "fact,"    191. 

HOLT,   C.   J.,  narrow  view  of,  as  to  interpretation  of  writings,  427-429, 

4.34,  436,  447. 
HOLMES  quoted,  371,  375. 


620  INDEX. 

HUDSON  quoted,  172. 
HUE   AND   CRY,  120. 
HUNDRED   JURY,  81,  82. 

IDENTIFYING   PERSONS   AND   THINGS,  limitation  of    extrinsic 

evidence  for,  435,  446,  447,  452,  456. 
ILLEGALITY   OF   CONSIDERATION,  406. 
IxMPEACHMENT   CASES,  evidence  in,  493,  494. 
ILLUSTRATIVE   CASES  under  "parol  evidence"  rule,  449-468. 
INDIA,  ordeals  in,  35. 
INDIANS,    American, 

testimony  of,  330. 

jury  in  New  England,  added  to,  104. 
INDICTMENT.     See  Accusing  Jury. 
INFERENCES   OF  FACT,  194,  228,  239,  247,  248. 
INFORMING   CONSCIENCE   OF   COURT,  431,  432. 
INFORMING   THE  JURY,  ways  of,  90-137. 
INNOCENCE,  presumption  of,  336,  337,  348,  541,  551-586. 

Coffin  V.  U.  S.,  as  to,  566-576. 

criminal  cases,  in,  exact  nature  and  scope  of,  559-566. 

Scotch  case  as  to,  556,  557,  567. 

Stephen  on  tiie,  557. 

use  of,  traced,  553-559. 

whether  in  itself  evidence,  560-576. 

See  Presumptions. 
INQUISITION, 

administration,  used  in,  47,  48,  51. 

development  of,  55. 

early  cases,  51-54. 

England,  in,  51-53. 

Frankish  and  Norman,  7,  47. 

judicature,  used  in,  47,  51. 
INSANITY.     See  Sanity. 
INSPECTION.     See  Age  ;  Real  Evidence. 

of  writings,  25. 
INTENTION. 

Bacon's  maxim,  relation  to,  425. 

evidence  of,  in  aid  of  interpretation   or  construction,  431,  434,  435, 
452,  4H0,  483. 

evidence  of,  in  case  of  ambiguity,  419,  420-422,  450-452,  488 

extrinsic  statements  of,  in  aid  of  construction,  465,  456,  462,  480- 
483. 
dangerous,  and  generally  excluded,  414,  440,  463,  465. 
excluiling  rule,  true  ciiaracter  of,  444. 
former  freeilonv  of  using,  in  equity  courts,  429-436. 


INDEX.  G21 

INTENTION  —co«//n«e(/. 

extrinsic  statements  of,  in  aid  of  interpretation,  historical  review  of 
cases,  415-440. 
last  resort,  only  used  as  a,  455,  456. 
probative,  414,  440,  441,  443,  444. 
rejection  and  reception, 

true  cliaracter  of,  441,  451, 
wrongly  explained,  440. 
Roman  law,  in,  422,  439,  444. 
special  doctrine  as  to  names,  432-434. 

as  to  equilibrium  of  evidence,   432. 
statute,  in  preamble  of,  444. 
general,  effect  of,  460. 
historical  review  as  to,  415-440. 

language  as  expression  of,  412,  413,  581,  582,  589,  601,  602. 
person's  own  statements  good  evidence  of,  439,  444,  521. 
proved,  how.  439,  521. 
Wigram's  meaning  of.  448. 

See  Interpretation. 
INTEREST,  declaration  against,  521. 
INTERPRETATION.     See  Construction. 

inferential,  460,  461, 470,  588,  600. 
ISSUES,  184. 

general  and  special,  109. 

JEOPARDY,  double,  175-177. 

JUDGES, 

charge  to  jury,  112-114. 
charging  on  facts,  right  of,  188. 
common  law  declared  by,  207. 
consulting  jury,  215. 
control  over  jarj%  137-179. 

over  procedure,  65. 

over  record,  116-118. 
determining  facts,  right  of,  202,  230. 
discretion  of,  214,  537,  538. 
duties,  nature  of,  207,  250. 

English,  power  of,  greater  than  American,  239,  528.    ' 
evidence,  inadmissible,  heard  by,  431. 
federal  courts,  doctrine  in  the,  188. 
function  of,  changed  by  consent  of  parties,  247. 
jury's  action,  revised  by,  208,  429,  536. 
language,  defined  by,  213. 
power  of, 

alwa5's  great,  207. 

appellate  court,  in  shaping  cases  for,  239-247. 

presiding  officers  of  the  meeting,  as,  208. 

verdict,  to  direct,  360,  361. 
practice,  procedure  and  pleading  shaped  bv,  217. 


622  INDEX. 

JUDGES  — continued. 

presumption,  rules  of,  laid  down  by,  212. 
reasonable  and  probable  cause,  duty  as  to,  222-232. 

JUDGMENTS, 

attaint,  reversed  on,  140. 

domestic,  398,  399. 

foreign,  398,  399. 

how  impeached,  399. 

interstate,  398,  399. 

vacating  of,  399. 
JUDICATURE   ACTS,  242. 

JUDICIAL  LEGISLATION,  207,  208,  212,318,  319,  326,  327,  331. 
JUDICIAL   NOTICE,  140. 

calendar,  as  to,  291-294. 

confused  with  real  evidence,  280,  281. 

discriminations  in  applying  doctrine,  306-312. 

evidence,  law  of,  does  not  include,  2,  278,  279,  298. 

human  body,  as  to,  295. 

illustrations  of,  281-296. 

jury  must  take,  296. 

language,  in  construction  of,  286-291. 

legal  reasoning,  belongs  under,  297. 

main  principles  of,  two,  277. 

meaning  of,  278. 

patents,  as  to,  294. 

place  in  the  law,  278. 

pleadings  and  record,  questions  arising  on,  281-286. 

Stephen's  views  of,  279. 

things  covered  by,  299-306. 

courts  accustomed  to  notice,  299-301. 
known  to  everybody,  .301-306. 

by  nature  of  judicial  office,  301. 
JUDICIAL   OFFICE,  nature  of,  274. 
JUnATA,&5,U7n. 
JURORS  TESTIFY   TO  JURY,  174. 
JURY, 

accusation,  05,80-84,  113,  124,  149,  180. 

certification,  145. 

challenge,  82,  90,  95,  123,  171. 

combination  of  several,  93,  94. 

combined  with  witnesses,  97-104. 

comi)laiMC(l  of,  116-119,  146,  149. 

romposilion,  90,  97,  I.'U. 

consent  to,  08-81,  _143,  147,  156. 

control,  137-181. 

court,  consulted  by,  215,  258-262. 
controlled  l)y,  2(W,  431. 
relation  to,  iViT,  ],S8,  209,215,  217,  222. 


INDEX.  623 


JURY  —  continued. 
criminal  cases, 

composition  of  jury  in,  81-84. 

employed  in,  67-74. 
de  medietate  liiif/iiae,  94  n. 
ecclesiastics  subjected  to,  G7. 
estoppel  on,  127,  128. 
evidence, 

fined  for  going  against,  1G2-168,  172. 

judges  of,  are,  100. 

law  of, 

gave  rise  to,  24,  180. 
relation  of,  to,  410,  529,  534,  535. 
exceptio,  used  in  trial  of,  59,  68. 
experts,  of,  94. 
favor,  given  by,  59. 

fact,  right  to  draw  inferences  of,  194,  217. 
fined,  162-108,  172.     See  Misconduct  of,  infra. 
foreigners  on,  94. 
function,  183. 

clianged  by  consent  of  parties,  247,  249. 
Glanvill  as  to  beginnings,  01. 
historical  sources,  as  to,  50. 
hundred,  81,  82. 
hundredors  on  the,  91,  100. 
Indians  on  the,  104. 
informed  by, 

charge  of  judge,  112-114. 

counsel's  unsworn  statements,  120-122. 

knowledge,  tiieir  own,  120. 

parties  out  of  court,  92,  110,  111. 

record,  reading  of,  115. 

witnesses  going  out  with  them,  97-104. 
publicly  testifying,  122,  137,  170. 

writings,  104-112,  138  n.,  150  n. 
informing  modes  of,  90-136. 
interrogating,  right  of,  218,  219. 
judge's  control  over,  137-179. 
judges  of  fact,  now  are,  170  n. 
judges  of  law,  whether  are,  253-257, 
judicial  notice  taken  by,  296. 
knights  on  the,  95. 

law  and  fact,  separation  of,  in  charging,  220. 
merchants,  of,  94. 
Mirror,  the,  as  to  oath  of,  100. 
misconduct  of,  112,  154,  1-55.  161,  169. 
neighbors,  must  be,  65,  90-93. 
number  of,  85,  89,  90. 
oath,  form  of,  100. 
origin  of,  7. 


624  INDEX. 

JURY  —  continued. 

original  character  of,  48. 

proof  by,  3,  85,  502. 

private  knowledge,  whether  power  to  act  on,  105-109,  237,  295. 

punishment,  lil. 

attaint,  by  tlie,  137-160. 

otherwise,  162-169. 
reasonable  and  {)robable  cause,  duty  as  to,  222,  2.32. 
record, 

contradict,  could  not,  128. 

private  knowledge,  power  to  find  on,  105-109. 

evidence  to  find,  must  have,  109. 
resummoning,  107,  1-15. 
special,  419. 

Star  Chamber,  punished  in,  139,  162,  172  n. 
testimony  by,  174. 
trial  by, 

criminal  cases,  in,  described,  157  n. 

evidence,  relation  to,  2-4,  180. 

Fortescue's  accouut  of,  130-132. 

growth  of,  rapid,  41,  59,  66-G8. 

maintenance  and  conspiracy,  affected  by,  125-180,  134. 

other  modes  of  trial,  mingled  with,  505. 

parol  evidence  rule,  effect  of,  on,  404,  410,  429,  430. 

pleading,  effect  of,  on,  3,  353,  354. 

privilege  of,  given  by  crown,  49. 

restricting,  534,  535. 

royal  courts,  at  first  limited  to,  49. 

seventeenth  century,  at  end  of,  410,  429,  430. 

unanimity,  rule  of,  86-90. 

witnesses  in,  498-500. 
triers,  as,  87. 
unsettled  rights  of,  180. 
wilfulness  of,  172. 
witnesses,  as,  67,  87,  130-132,  137. 
writings, 

only  "  authentic,"  taken  out  by,  107. 

shown  to,  104-112. 

KENYON,  Lord,  on  antiquity  of  law  of  evidence,  493. 
KINfi,  tlie,  as  a  law  reformer,  49,  56. 

LANODKLL,  on  pleading,  364,  365,  371-376. 
LANGUAdlO, 

construction,  203,  412. 

definition,  213. 

imperfections,  412,  413,  585. 

nature,  412,  413.  .'iH2-.58,''). 

yee  I'aucjl  Evidknce  Rule;  Writings. 


INDEX.  625 

LATERAN  COUNCIL,   fourth,   37,  68-70,  79. 

LAW, 

definition,  192,  193,201,215. 

fact,  application  to,  193,  201,  251-253. 

factum  of,  257,  258. 

growth  of,  207,  215. 

jury,  power  as  to,  253-257. 

land,  of  the,  200. 

presumptions  of.     See  Pkesumptions. 

reform  of,  king  tlie  great  promoter  of,  49,  56. 

substantive,  390. 

wager  of,  200. 
LAW   AND  FACT, 

discrimination,  between,  183,  216. 

jury  trials,  in,  183-262. 

Markby  on,  191. 

mixed  questions,  220. 

questions,  neitlier  one  nor  the  other,  251. 

separation  of,  187,  218. 
"LAWYER'S   LOGIC,"  275. 

LEGAL   INTERPRETATION.     See  Interpretation. 
LEGAL   REASONING, 

burden  of  proof,  relation  to,  353,  388,  389. 

evidence,  relation  to  law  of,  2*)3. 

judicial  notice,  relation  to,  298. 

maxims,  335. 

nature,  270-276. 

presumptions,  relation  to,  314,  .381,  382. 
See  Reasoning. 
LEG  A  LIS   HOMO,  G3. 
LEGISLATION,  proceeding  on  presumptions,  327-331. 

See  Jddicial  Legislation. 
LEGITIMACY,  presumption  of,  336,  316,  347,  349,  350,  540. 
LEVAMEN  PROBATIONLS,  presumptions  are,  381. 
LEX,  11,  199,  200. 

et  consiietudo,  56. 

recordamenti,  103. 

terrae,  63. 
LIBEL,  210,  220,  288. 

interpretation  of  words  in,  419. 

See  Slander. 
LIFE,  presumption  of,  .322,  348. 
LIFE   AND   DEATH.     See  Death. 
LILLE,  compurgation  at,  125. 
LITTLETON  quoted,  57. 
LOCAL   COURTS,   7.3. 

prohibition  to,  63.  40 


626  INDEX. 

LOCKE'S   PHILOSOPHY,   506. 

LOUIS   LE   DEBONNAIRE,  capitulary  of,  17. 

MAGNA   CARTA,  11,  66,  68. 
MAINE,  Sir  Henry,  quoted,  8,  36,  49,  200,  201,  508. 
MAINOUR,  taking  witli  the,  71,  72,  328. 
MAINTENANCE   AND   CONSPIRACY, 

effect  of  law  in  keeping  away  witnesses  to  the  jury,  125-130,  134. 

nature  of,  126-121). 
MAITLAND,  Professor,  494. 

quoted,  50,  G'.J,  100,  103,  144,  562. 
MALICIOUS   PROSECUTION,  actions  for,  221. 
MARKBY  quoted,  191. 
MASSACHUSETTS  use  of  burden  of  proof,  355,  379,  386-388. 

MAXIM, 

ad  quaestionem  facti.  etc.,  183,  185,  187. 

Coke,  probably  originated  with,  185. 

fact,  issues  of,  relates  to,  187,  207. 
Bacon's,  422-426. 
stabitur  presuniptioni,  etc.,  meaning  of,  384. 

MAXIMS, 

judicial  notice,  as  to,  277. 

legal  reasoning,  of,  335. 

merciful,  in  criminal  cases,  157. 
MAYHEM,  13,  36. 
ME  DIET  ATE  LINGUAE,  de,9i. 
MEMORATORIUM,  393. 
MERCANTILE   LAW, 

growth,  419. 

interpretation,  effect  on,  436. 
"MERCANTILE   SHORT   HAND,"  436. 
MERCHANTS'   BOOKS,  ns  evidence  for  them,  521. 
"  MERTLAGE,"  the,  292. 
MIDDLE   AGKS,  181. 
MILLER   V.   TRAVERS, 

analyseil  and  discussed,  474-478. 

construction,  not  a  case  on,  but  on  reforming  a  will,  475,  477. 
MIRROH,  the,  as  to  attaints,  147. 

oath  of  jury,  100. 

ordeals,  38. 
MISf'ONDUCT    OF  JURY,  112,  154-155,  172. 
MISTAKE,  defence  of,  408. 

MISTAKES,   whether  corrected  by  construction,  404,  460,  407,   475, 
477-479. 


INDEX.  627 

MISTRIAL.     See  New  Trial. 

MIXED   QUESTIONS  of  fact  and  law,  202,  220,  224,  249-253. 

MORT  D' ANCESTOR,  a.ssizeoi,d8. 

NAMES,  special  doctrine  as  to  construction,  formerly,  432-435. 

NECESSARIES,  211. 

NEGATIVE   CASE.     See  Affirmative  Case. 

NEGLIGENCE, 

fact,  mere  question  of,  250. 

nature  of  jury's  duty  in  questions  of,  226,  227,  249. 
NEIGHBORHOOD,  jury  to  be  from,  65,  90-93. 
NEW   TRIALS,  139,  153-155,  169-179,  180. 

American  colonies,  in  the,  173. 

criminal  cases,  in,  163,  175-179. 

equity,  granted  through  courts  of,  172  n. 

evidence,  for  going  against,  154,  155,  169. 

illustrative  cases,  170-175. 

mistrial,  for  a,  177. 

rules  as  to  granting,  240. 

seventeenth  century,  in,  410,  429,  430. 
NICHOLS,  F.  M.,  quoted,  425-426,  460,  470. 
NISI  PRIUS,  system  of,  95,  96,  255. 

NON-LEGAL   STANDARDS,  application  of,  252,  516-518. 
NONSUIT,  power  of  becoming,  12-3. 
NON-SUMMONS  in  real  actions,  trial  of,  29,  34. 

NORMAN   LAW, 

relation  of,  to  English  law,  54,  55. 
to  old  Germanic  law,  47,  48. 

NORTH,   Roger,  quoted,  168. 
NORTHAMPTON,  assize  of,  57. 
NOVEL   DISSEISIN,  assize  of,  58. 
NOTITIA,  393. 
NUMBER  of  grand  assize,  46,  86. 

of  common  jury,  85,  89,  90. 

of  witnesses,  179. 

OATH, 

only  king  could  compel,  49. 
trial  by,  24-34. 

fading  out  of,  28-34,  .37. 
procedure  in,  26-28,  31. 
OATH-HELPER,  25-28,  134,  135. 
ODIO  ET  ATIA,  exceptio  de,  68. 


628  INDEX. 

ONE-SIDED   PROOF,  10,  56,  59. 

ONUS  PROBANDI,  an  ambiguous  phrase,  366,  387.     See  Burden 

OF  Proof. 
OPINION   EVIDENCE,  519,  523-525,  536. 

fact,  relation  to,  524. 

rule  of,  difficulties  in  stating  and  applying,  524,  525. 

ORDEAL,  201,  329. 
ORDEAL,  trial  by, 

abolition  of,  67,  81. 

consent  of  accused  not  needed,  70. 

in  India,  35. 

latest  cases  of,  in  English  law,  37,  38. 

misconceptions  as  to,  39. 

very  old,  34. 

William  Kufus,  38. 
OWNERSHIP  OF   CHATTELS,  tried  by  witnesses,  21-23. 

PALGRAVE,  quoted,  13,  78,  80,  91,  182. 
PARADISE,  the  lawyer's,  428. 
PAROL   CONTRACTS,  402. 
PAROL   EVIDENCE, 

construction,  necessary  in  aid  of,  411-414,  419,  426-429,  435,  451, 
457,  480,  481. 

equity  and  commercial  law,  liberalizing  influences,  436. 

habits  of  writer,  453. 

intention  in  aid  of  interpretation,  434,  435. 

interpretation,  generally  admissible  in  aid   of,  462,  463,  467,  468, 
480-483. 

limit,  attempts  to,  435,  446-448,  451,  452,  454,  460,  461,  466,  467,  470, 
478-480. 

question  about,  mistaken  form  of,  435,  450,  512,  513. 

will,  as  Xo  factum  of,  477. 
PAROL  EVIDENCE   RULE,  390-483. 

confused  and  difficult,  390,  435. 

contracts,  simple,  402. 

deeds,  400. 

evidence,  mostly  not  belonging  to  law  of,  390,  c.  x.  passim. 

Greenleaf's  statement,  396. 
analysis  of,  397,  398. 

judgments  and  records,  as  applied  to,  397-399,  401. 

statement  of,  390,  .']97. 

Stephen's  statement  of,  397. 
analysis  of,  397,  398. 

substantive  law,  put  in  form  of,  405-409. 
PARTIES  privately  inform  juries,  92,  110-111. 
PARTITION,  102. 


INDEX.  629 


PATENT   AMBIGUITY.     See  Ambiguity. 

PATENTS,   400. 

PEINE   FORTE  ET  DURE,   74-81. 

PEYNEL'S   CASE,  420-422. 

PHYSICAL   SENSATIONS,  ways  to  prove,  521. 

PIKE  quoted,  26,  77,  93,  170. 

PLEADING,  353,  364,  401,  485,  599. 

burden  of  proof,  as  related  to,  853. 
Laugdell  on,  304,  305,  371-375. 

"color"  in,  118. 

documents  in,  106. 

evidence,  114-120,220. 

general  issue,  220. 

malicious  prosecution,  in,  222. 

Roman  law,  in,  353,  364-366. 

special,  114-120,  221,  232. 
PLEADINGS, 

construction  of,  332. 

power  of  judges  in  shaping,  217  et  seq. 
PLEDGE,  393. 

POLLOCK   and   xMAITLAND  quoted,  81,  147. 
POSSESSORY   WRITS,  03,  64,  140. 
PRAESUMITUR  PRO  NEGANTI,  552,  558. 
PRAESUMPTIO  H0MINIS,3i\,  342. 
PRAESUMPTIO  JURIS,  837,  341,  568,  574,  575. 
PRAESUMPTIO  JURIS  ET  DE  JURE,  343. 
PREAMBLE  of  statute  as  aid  to  interpretation,  444. 
PREPONDERANCE   OF   EVIDENCE,  336. 
PRESCRIPTION,  212. 
PRESUMPTIONS,  31.3-352. 

ambiguity  of  term,  351-352. 

ancient  lights,  as  to,  324-326. 

burden  of  proof,  relation  to,  880-386,  542,  543. 

civilians,  handling  of,  313,  341-345. 

Coffin  V.  U.  S.,  as  to,  337,  551,  566-576. 

conclusive,  212,  316,  343,  846,  509,  510,  539. 

conflicting,  343-345,  347-351. 

continental  classification  of,  341,  342. 

death,  .348,  542. 

origin  and  growth  of,  310-324. 

difficulty  of  subject,  313,  351,  352. 

disputable,  541. 

duty  of  establishing,  do  not  fix,  366. 

effect,  336,  337,  339,  346,  365,  366,  381. 

evidence,  law  of,  relation  to,  314. 


630  INDEX. 

PRESUMPTIONS  —  contbmcd. 

evidence,  never  relates  to  weight  of,  336,  558. 

whether  in  itself,  313,  337,  560-564,  567,  568,  574-576. 

fact,  of,  313,  339-343,  381,  539,  548-550. 

facts,  fix  legal  equivalence  of,  317,  321. 

growth  of,  illustrated,  31'J-326,  340. 

jury,  effect  on,  180. 

guilt,  of,  561,  562. 

innocence,  of,  331,  337,  348,  541,  551-576. 

nature  of,  559-6G4. 

policy,  a  rule  of,  561. 

reasonable  douht,  relation  to  doctrine  of,  557,  566,  567. 

judicial  administration,  a  means  of,  212,  337,  338. 

judicial  legislation,  means  of,  318,  319,  324,  326,  .327,  331. 

jury,  effect  of,  on,  180. 

law,  of,  313,  ,337,  339-343,  381,  384,  539,  543. 

legal,  340,  542.     See  Presumption  or  Law. 

legal  reasoning,  relation  to,  314,  334. 

legislation,  illustrated  by,  .327-331. 

legitimacy,  336,  346,  347,  349,  350,  540. 

levarnen  pruhationis,  381. 

life,  of,  348. 

looseness  in  dealing  with,  340,  341. 

maxim  stabitur  presumptioni,  etc.,  384. 

misapprehensions  about,  common,  346-351. 

miscalled,  334,  335. 

nature  of,  212,  313-352,  326,  .3.36-.3.38,  351,  381,  542-550,  560,  563. 

nature,  not  tested  by  doctrine  of  special  verdicts,  331-335. 

policy  as  a  basis  of,  213. 

prima  facie,  properly  rules  of  substantive  law,  180,  315. 

rebuttable,  541. 

rebutting  a,  439. 

sanity,  381-.383,  384,  564. 

stolen  goods,  71. 

substantive  law,  are  largely  rules  of,  31.5,  327,  542-546. 

variety  of,  great,  334,  351. 

writings,  as  to  alterations  in,  527. 
PRIMA   FACIE   CASE,  357,  358,  362,  381,  542-546,  .575,  576. 
PRIMA    FACIE  LIABILITY, 

presumption,  by  means  of,  317,  321,  330,  331,  542. 

statute,  liy,  330. 
IMUMARY   EVIDENCE.     See  Evidence. 
IMJINTING,  invention  of,  182. 
IMUVILEGE  of  making  proof,  10. 
rUOHARLE   CAUSE.  222-232. 
PIIOHA  TIC,  ambiguous  word,  366,  387. 
I'ROriCDUKK,  194-202. 

case  stated,  jjowcr  of  court  to  draw  inferences  in,  247-248. 


INDEX.  631 

PROCEDURE  —continued. 

exceptions,  bill  of,  239,  529. 

power  of  judges  over,  tJo,  217-249. 

S()ecial  verdicts,  247,  248. 

trial,  new,  240. 

reservations  at,  241-243. 

errors  from  not  observing  nature  of  these  arrangements,  242-249 
PROFERT, 

documents,  of,  13,  lOG. 

law  of,  526. 

Stephen's  theory  of,  504. 
PROOF, 

burden  of,  10. 

jury,  by,  3,  85,  502. 

modes  of,  continental,  130. 
formal,  198. 

privilege  of  making,  10. 

Stephen's  views  of,  280. 

writing,  contents  of.     See  Writing. 

See  Age;  Burden  of  Proof;   Death;  Ownership. 
PUBLICITY,  old  ways  of  securing,  120. 
PURPOSE   OF   THIS    BOOK,  1-5,  47. 


RATIONAL   METHODS   OF   PROOF,  10. 
REAL  EVIDENCE,  280,  281. 
REASON,  life  of  the  common  law,  208. 
REASONABLE   DOUBT,  336,  348,  552,  556. 

Coffin  V.  U.  S.,  as  to,  566-576. 
REASONABLE   NOTICE,  226. 
REASONABLE   AND   PROBABLE   CAUSE,  222-232. 

court  and  jury,  relative  functions  as  to,  225-232. 
REASONING,  legal,  263,  270-270,  298,  314,  381,  382,  485. 

confused  witli  law  of  evidence,  273. 

judicial  notice,  included  in,  278. 

law,  is  mainly  not  a  matter  of,  271. 

maxims  of,  278,  335. 
REBUTTING   AN  EQUITY   OR   PRESUMPTION,  437-440. 
RECOGNITIONS,  41,  55-66.     See  Assizes. 
RECORD, 

admissions  by,  128  n. 

"authentic,"  is,  107. 

burden  of  proof  on  the,  378. 

evidence  entered  on  tlie,  114-120. 

judge,  control  over,  116-118. 

jury  estopped  by  the,  127  n.,  128  n. 
relation  of,  407,  410. 


632  INDEX. 

RECORD  —  continued. 

jury,  read  to,  115. 

whether  could  find  matter  of,  on  private  knowledge,  105,  109. 

"trial"  by,  5Ui. 
RECORDS,  beginning  of  judicial,  50. 
REEVES  quoted,  146 
REFORMER   OF   LAW,  king  formerly  the  great,  49. 

RELEVANCY,  448,  4(J8,  485,  510-518. 

not  an  affair  of  law,  204,  265. 
REPORTS,  beginning  of,  50. 
REPUTATION   AS   EVIDENCE,  521. 
RES   GESTA,  declarations  as  part  of,  521,  523. 

REUS, 

determine,  iiow  to,  370-37(3. 

duty  of  establishing,  relation  to,  309,  370. 

RIGHT,  writ  of,  Gl,  63. 

ROMAN   LAW,  157,  181,  558,  579. 

burden  of  proof  in,  353,  354,  364,  366,  387. 

pleading  in,  354,  364-366. 

ROYAL   PUWEK,  7,  50. 


SALES,  17. 

SALIC  LAW,  25,  200. 

SANITY, 

burden  of  proof  on,  381-383. 
presumption  of,  381-383. 

SEAL,  effect  of,  408.  504. 

SECONDARY   EVIDENCE.     See  Evidence. 

SECTA,  tlie,  10-16,  65. 

produced  by  botli  parties,  21,  22. 

SEISIN,  03,  04. 

SELBORNE,  Lord,  as  law  reformer,  533. 

SELDEN  quoted,  15,  42. 

SELDEN   SOCIETY,  42  n. 

SELECTION    OF    PERSONS    FOR   JIJllY,  90,  94-97. 

SEVEN  YEARS,  319-320.     See  Prksumption  of  Death. 

SHOP-BOOKS,  521. 

SLANDER, 

rule  of  in  niitinri  sr'nsu,  288. 
words,  interpretation  of,  419. 
SLOWNESS   OF   HISTORICAL   CHANGES,  137,  181,  182. 


INDEX.  033 

SMITH,  Sir  Thomas,  quoted,  77,  153,  157,  163. 

capital  trial,  account  of,  157. 

jurors,  as  to  punishing,  153,  163. 
SOLICITORS'  JOURNAL   ON   "  FACT,"  192. 
SPECIAL  JURY,  94-97,  419. 
SPECIAL  PLEADING,  114-120. 
SPECIAL   VERDICT,  119,  154.     See  Verdict. 
SPECIALTY,  108,  375,  394,  395. 
SPELMAN   quoted,  44,  63. 
STABBING,  statute  of,  180. 
STAR  CHAMBER, 

punished  juries,  139. 

wager  of  law,  on,  30. 
STARKIE   quoted.  111,  547-550. 
STORRS'   LECTURES,  484,  551. 
STATUTE  of  Fines,  407,  410. 

of  Frauds,  180,  391,  395,  403,  404,  408,  410,  430,  432,  437. 
law  of  evidence  at  time  of,  410. 

of  Stabbing,  18U. 
STATUTES, 

construction,  215. 

factum  of,  257,  258. 

preamble  of,  as  aid  to  interpretation,  444. 

prima  facie  liability  under,  330. 
STEPHEN,  H.  J.,  quoted,  504. 

STEPHEN,  Sir  J.  F..  quoted,  13, 192,  267,  280,  349,  397,  557. 
STOLEN   GOODS,  presumption  as  to,  71,  328. 
STOPPAGE   IN  TRANSITU,   260 
STUBBS,  quoted,  39,  48. 
SUBSTANTIVE  LAW, 

affirmative  case,  as  determining,  372-376. 

changes  in,  effect  on  evidence,  404-409. 

evidence,  in  form  of, 
deeds,  400. 
judgments,  .398. 
parol  contracts,  402. 
records,  .398,  401. 
various  cases,  405-409,  512-516. 
wills,  404. 

presumptions  largely  rules  of,  315,  317,  327. 
SUFFICIENT   EXPRESSION.     See   Expression. 

TALLIES,  13. 

TESTIS,  an  ambiguous  word,  25. 

THORNTON,  W.  W.,  quoted,  218. 


634  INDEX. 

THROCKMORTON'S   CASE,   158,  163. 

TRANSACTION  WITNESSES.     See  Business  Witnesses. 

TREASON,  509,  510. 

witnesses,  number,  179  n. 
TREATISES,  law,  earliest,  50. 
TRESPASS,  actions  of,  66,  67. 
TRIAL, 

at  bar,  95,  96,  153  n. 

attaints,  147. 

battle,  16,  17,  39-47. 

challenges,  of,  123,  124. 

conceptions  of,  early,  9. 

inquisition,  by,  51-53. 

jury,  by,  16,  47-182. 

early  conceptions  of,  134-136. 
early  reports  of,  130-134. 

justices,  by  the,  24. 

meaning  of  the  word,  16. 

non-summons  in  real  actions,  of,  29,  34. 

oath,  by,  16,  24-34,  330. 

older  modes  of,  1,  7-47,  329. 

ordeal,  by  tlie,  16,  34-39,  329. 

rational  metliod  of,  10. 

recognition,  by,  55. 

unnecessary  sometimes,  71,  72. 

verdict  of  twelve  men  by,  134,  135. 

witnesses  by,  17-24,  135,  136. 
TRIALS,   new.     See  New  Trials. 
TWELVE,  the  number,  praised,  90. 

UNANIMITY   OF  JURY,   86-90. 
f7r/?6^.1/,  assizeof,  59,  60. 

VAUGIIAN,  C.  J.,  in  RusheH's  case,  167. 
VERDICT, 

attaint,  in,  332. 

previous  proceedings,  effect  on,  140. 

construing,  ruk>s  for,  332,  333. 

general,  217,  220,  252. 

judge's  power  over,  169,  208,  360,  361,  410,  429,  430. 

libel  cases,  220. 

mrxlern,  nature  of,  167. 

rules  governing,  .")31-335. 

special,  109,  154,  173  n.,  185,  187,  217-219,  260,  261,  331-335,  426. 
ultimate  fact,  must  find,  331. 

"trial"  by,  134,  135. 


INDEX.  635 

VILLEINAGE,   102. 
VISNE.     See  Neighborhood. 

WADIA,  393. 

WAGER   OE   LAW,  25-34,  39,  90,  129,  200. 

Star  Cliamber  on,  30. 

United  States,  in  the,  33  n. 
WEIGHT  OF  EVIDENCE.     See  Evidence  ;  Presumption  ;  Reason 

ABLE     DODBT. 

WIGRAM  quoted,  404,  469,  481,  482,  592-598,  603. 
WIGRAM'S   BOOK,  401,412,  445,  472-474.     See  Hawkins. 

construction,  really  denls  vvitli  rules  of,  405. 

"  evidence  of  intention,"  liis  use  of  plirase,  482. 

fifth  proposition,  445,  473,  594. 

second  proposition,  447,  459,  406,  469,  481. 
WILLIAM   RUFUS   ON   ORDEALS,   38. 
WILSON,  James,  quoted,  254,  255. 
WILLS, 

nuncupative,  393. 

"  parol  "  evidence,  as  to,  404. 

personalty,  of,  437. 

reformation  of,  437. 

statutes  of,  414,  415. 

written,  391,  415. 

WITNESSES, 

attesting,  and  others, 

jury,  combinoil  with,  97-104. 
discriminated  from,  101. 
business  or  transaction,  17,  100-102. 
casual,  123,  502. 

challenges,  before  triers  of,  123,  124. 
community,  100-102. 
complaint,  10-17. 

fading  out  of,  12-18.  • 

number  of,  12. 
duty,  nature  of,  498-500. 
examination  of,  525,  536. 
exclusion  of,  2,  526. 
expert,  196,  262,  524. 

hearsay  evidence,  relation  to,  408-501,  518,  519. 
jury,  before,  in  open  court,  122-138. 

attaint,  effect  of,  on,  150. 

introduction  of,  delayed  by  law  of  maintenance  and  conspiracy, 
125-129. 

relation  to,  498-500,  502,  519,  526. 

rule  that  personal  presence  necessary,  495,  489,  498-501,  536. 

number  of,  179,  430. 


636  INDEX. 

WITNESSES  —  continued. 

jury,  unimportant  in  trial  by,  at  first,  130,  132,  137. 

opinion  evidence,  relation  to,  524. 

preappointed,  123,  519. 

transaction,  502. 

trial  by,  15  n.,  17-24,  135,  136. 

"  trial  "  or  proof,  by,  502. 
WOMEN,   94. 
WRITINGS,  13,  16,  13S  n.,  150  n. 

alterations  in,  527. 

"  authentic,"  107. 

constitutive  and  dispositive,  108,  391,  393-395. 

construction,  203-207,  215. 

contents,  proof  of,  488,  497,  498,  503-505,  526,  536, 
See  Best  Evidence  Rule. 

dispositive.     See  Constitutive,  supra. 

evidential.     See  Testimonial,  infra. 

execution,  proof  of,  495,  498,  501-508,  526,  536. 

expression,  how  full,  required  by  law,  411-413. 

formal,  394. 

interpretation  as  regards  different  classes  of,  577-580,  600-604. 

jurv,  produced  to,  104-112,  -520. 

testimonial,  108,  393,  395,  520. 

"  trial  "  by,  205,  504. 

various  kinds,  205,  393. 

various  ways  of  affecting  them  orally,  408,  409.     See  Parol  Evi- 
dence; Wills. 

WRITS, 

consimili  casu,  in,  G6. 
new,  introduction  of,  66. 
possessory,  63,  64,  140. 
right,  of,  03. 
WURTS,  Professor,  quoted,  219. 


.JL 


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